OPINION.
Littleton :
Section 240 (d) of the Revenue Act of 1926 provides:
For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns at least 95 per centum of the stock of the other or others, or (2) if at least 95 per centum of the stock of two or more corporations is owned by the same interests. As used in this subdivision the term " stock " does not include nonvoting stock which is limited and preferred as to dividends. This subdivision shall be applicable to the determination of affiliation for the taxable year 1926 and each taxable year thereafter.
The evidence shows that members of the Weisbrod and Hess families own in the same proportion 87½ per cent of the stock of the petitioner and of the Weisbrod & Hess Brewing Co.
The evidence also show's that Gustave G. Boehm and Charles E. Boehm each own 6½ per cent of the stock of the petitioner and that William Weisbrod owns 12½ per cent of the stock of the Weisbrod & Hess Brewing Co. It further appears that Laura Boehm, the wife of Gustave G. Boehm, is the sister of William Weisbrod.
The foregoing is substantially all the evidence in the case and, in our opinion, is not sufficient to justify us in holding the Commissioner commit! ed any error in his determination that the petitioner and the Weisbrod & Hess Brewing Co. are not affiliated corporations.
The brief and argument in behalf of the petitioner assume, as facts, matters which are not alleged as such in the petition nor admitted by the answer.
It does not appear from the averments of the petition and admissions in the answer, upon which the case is submitted, that the " same interests " own as much as 95 per cent of the stock of the two corporations. We, therefore, approve the determination of the Commissioner.
Judgment will he entered for the respondent.