
    NEW CASTLE LEATHER CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 322.
    Circuit Court of Appeals, Second Circuit.
    June 5, 1933.
    George W. Newgass, of New York City (A. H. Frisch, of New York City, Joseph J. Klein, of Cleveland, Ohio, and Myron A. Finke, of New York City, of counsel), for appellant.
    Sewall Key and John H. MeEvers, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., of counsel), for appel-lee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

This case involves the same question decided in our opinion in Delaware & Hudson Co. v. Commissioner (C. C. A.) 65 F.(2d) 292, handed down herewith. The affiliate, whose carried over loss was sought to be used, had had losses both in 1927 and 1928. The loss for 1928 was coneededly a proper deduction in- the group .income for that year. The Commissioner and the Board refused to allow the carried over loss as a further deduction. The only difference urged is that section 234 of the Act of 1926 (26 USCA § 986) allowed no deduction for net losses, while section 23 of 1928 (20 USCA § 2023) expressly did so. In the earlier acts the warrant for the deduction was section 206 (b) (26 USCA § 937); in the Aet of 1928, section 117 (b), 26 USCA § 2117 (b) supplied its place, and was incorporated by reference into section 23. We cannot draw from this formal change the inference of any modification of legislative intent. Section 117 (b) still specifies how the carried over losses shall be used. Possibly the change does answer any argument drawn from “minus income,” but that we do not regard as essential to the result.

Order affirmed.  