The opinion of the court was delivered by: GOURLEY
Taxpayer makes the ingenious argument that omission of the words 'the taxpayer' from Section 211 of the Revenue Act of 1940 permits a different result from that reached in New Colonial Ice Co. v. Helvering, 1934, 292 U.S. 435, 54 S. Ct. 788, 78 L. Ed. 1348. It may be doubted whether this contention could prevail, even in the absence of subsequent legislation, in view of the legislative history of that statutory provision; see H. Rep. No. 855, 76th Cong., 1st Sess, pp. 16-19 (1939) (1932-2 Cum.Bull. 504, 517-518). Further, it might be noted that the interpretation espoused by taxpayer could result in a company claiming a carry-back loss of an entirely unrelated enterprise.
In any event, the language of Section 211, as retroactively amended by the section 153 of the Revenue Act of 1942, is so similar to that upon which the Supreme Court of the United States passed, in the New Colonial Co. case, supra, that this Court deems itself bound to follow the reasoning and conclusion enunciated therein. The cases upon which taxpayer relies are clearly distinguishable, in that the same corporate entity was involved in both instances.
1. The facts of this case have been stipulated and are so found. They will be here repeated in abbreviated form.
2. On May 11, 1934, Follansbee Brothers Company ('Brothers'), a Pennsylvania corporation, was placed in the hands of receivers in equity appointed by this Court.
3. On June 18, 1934, Brothers petitioned this Court for leave to reorganize under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207B. Three trustees were appointed, who operated Brothers until July 1, 1940.
5. As of July 1, 1940, taxpayer took over all the assets and business of Brothers, in a reorganization tax-free under Section 112(b)(2) of the Internal Revenue Code, after which date Brothers was no longer in existence. Taxpayer still operates said business.
6. The transfer being of bare legal title, it effected no visual change in the business or in the nature of its operations. One of the trustees became Chairman of the Board of taxpayer. The same set of books of account was continued. Taxpayer paid obligations of the trustees still unsatisfied on June 30, 1940.
7. Under the provisions of the reorganization, bondholders of Brothers became holders of preferred and common stock of taxpayer; unsecured creditors of Brothers also became preferred and common stockholders of taxpayer; preferred capital stock of Brothers was exchanged for common stock of taxpayer; and common stock of Brothers was exchanged for common stock of taxpayer.
8. After the exchange was completed, taxpayer had outstanding 25,516 shares of preferred and 217,966.05 shares of common. Identity of ownership between the two corporations continued.
9. From January 1, 1940, to June 30, 1940, inclusive, the trustees operating Brothers sustained a net operating loss of $ 235,315.21.
10. Taxpayer sustained a net operating loss of $ 43,773.88 for its taxable year ending December 31, 1940; and taxpayer was entitled to carry over that sum as a deduction in computing its taxable net income for its taxable year 1941.
11. The taxable net income of taxpayer for its taxable year 1941, before any net operating loss ...