
    Fontana Union Water Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 34518.
    Promulgated December 9, 1930.
    
      Daniel E. Farr, Esq., for the petitioner.
    
      J. Arthv/r Adams, Esq., for the respondent.
   OPINION.

MaRQuette:

It appears from the deficiency letter herein that the respondent determined that the petitioner and the Fontana Farms Co. were not affiliated during the year 1922, and taxed the petitioner on its separate income, and in the petition it is alleged that the respondent erred in holding “ that petitioner was not affiliated with Fontana Farms Company in 1922.” All of the material allegations of the petition are denied by the respondent’s answer.

At the hearing counsel for the petitioner and the respondent entered into a stipulation of fact to the effect that during the year 1922 substantially all of the capital stock of the petitioner was owned directly, or controlled through closely affiliated interests, by the Fontana Farms Co. Other facts were'also stipulated, which present an issue not raised by the pleadings. No amendment to the pleadings was made at the hearing, and counsel for the respondent stated that “ the only thing I see necessary to call to your attention is the error alleged in the petition reading as follows: The determination by the Commissioner that the petitioner was not affiliated with the Fontana Farms Company in 1922. That is the only issue set forth in the petition.” We therefore decline to consider that part of the stipulation not pertinent to the issue raised by the pleadings.

It clearly appears from the record before us that the petitioner was affiliated with the Fontana Farms Co. during the year 1922 within the meaning of section 240 of the Revenue Act of 1921, and that their tax liability should be determined on the basis of a consolidated return.

Judgment will be entered under Rule BO.  