OPINION.
TeaMMell :
The petitioner contends that the filing of separate returns by Joseph P. Day, Inc., the parent corporation, was in error; that the filing of such returns did not constitute an election on the part of the corporations to file separate returns, and that the three corporations should now be allowed to file an amended return on the consolidated basis.
Section 240 of the Revenue Act of 1921 provides as follows:
(a) That corporations which are affiliated within the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns, or under regulations prescribed by the Commissioner with the approval of the Secretary make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner. (Italics ours.)
After May 8, 1922, and throughout the periods here involved, Joseph P. Day, Inc., owned all of the stock of the petitioner who in turn owned all of the stock of Brighton Beach Baths, Inc. There is no contention that the corporations were not affiliated within the meaning of the statute, and it therefore is not necessary for us to discuss the question.
Under section 240 affiliated corporations might, for any taxable year beginning on or after January 1,1922, make their returns on one of two bases. They might make separate returns or they might under regulations prescribed by the Commissioner with the approval of the Secretary make a consolidated return of net income.
While Joseph P. Day, Inc., the petitioner, and Brighton Beach Baths, Inc., were affiliated from May 9, 1922, to December 31, 1922, and throughout the year 1923, they were not affiliated for the entire calendar year 1922, the "taxable year " of Joseph P. Day, Inc. This being true, they could make a consolidated return or separate returns for 1922, and whichever basis they used would not constitute an election that would be binding for the year 1923, since 1923 was the tírst " taxable year " for which an election of basis could be made which would be binding for subsequent years. St. Louis National Baseball Club, 15 B. T. A. 1192. Joseph P. Day, Inc., had the right for 1922 to file either a consolidated return or a separate return, and having filed a separate return for 1922, that return was the return required of it by statute, and the statute does not recognize amended returns in order to permit a corporation to file on another basis. The tax is to be computed on the basis of a proper return filed. The statute makes no provisions for amended returns in such cases.
The three corporations were affiliated throughout the whole of 1923 and, as indicated above, they were not bound to report their income for that year upon the same basis used in 1922, since 1923 was the first taxable year in which the affiliation existed under our decision in St. Louis National Baseball Club, supra, but were free to elect the basis upon which they would make their return of income for 1923. They had their choice, but this did not authorize one of the group to file a separate return and the others a consolidated return. Section 240 permitted each to make a separate return or the group to file a consolidated i'eturn. Joseph P. Day, Inc., filed a separate return. Such return when filed constituted the proper return for that corporation for that year and, owning all the stock of the petitioner, which in turn owned the stock of the Brighton Beach Baths, Inc., it had the right to determine and select on which basis the returns should be filed, that is, either a consolidated- return or separate returns, not both a consolidated return and separate returns. Since the statute does not permit some of a group of affiliated corporations to mate a separate return, and the remainder to make a consolidated return, the consolidated return filed by two of the corporations was not the return required by statute. The group of affiliated corporations did not file a consolidated return.
Since the return filed by Joseph P. Day, Inc., for each of the years was the return required of it by law, Belvidere Lumber Co., 6 B. T. A. 84, we do not think that the three corporations may now file amended returns on the consolidated basis, but that the tax of eacli corporation should be computed on a separate basis for both 1922 and 1923.
Reviewed by the Board.
Judgment will be entered for the respondent.
MuRdock. concurs in the result.