
    Farmers & Merchants Bank, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 8898.
    Promulgated February 1, 1928.
    
      Alvin B. Peterson, Esq., for' the petitioner.
    
      W. F. Wattles, Esq., for the respondent.
   OPINION.

Phillips:

The Commissioner determined that the petitioner was affiliated with the Farmers & Merchants Bealty Co. and falls within the provisions of section 240 of the Bevenue Acts of 1918 and 1921, which provide for a consolidated return of income in the case of affiliated corporations. Subdivision (c) of that section provides that two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests or by nominees substantially all the stock of the other or others, or (2) if substantially all the stock of the two corporations is owned or controlled by the same interests.

The Commissioner having determined that the two corporations were affiliated, the burden was upon the petitioner to establish the contrary. The evidence is not only insufficient to overcome this burden, but all that we have goes to show that the stockholders of the realty company were, in fact, nominees of the bank. If this were not so, no such lease as that made between the bank and the realty company could ever have been effected. The action of the Commissioner must be affirmed.

The parties also joined issue as to the rate of depreciation on the Smalley building, but settled this issue by stipulation.

Decision will he entered on W days’ notice, wider Bule SO.  