Alumax Inc. and Consolidated Subsidiaries - Page 102

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               Unless the district director agrees to the contrary, an                
               agreement entered into by the common parent extending                  
               the time within which an assessment may be made or levy                
               or proceeding in court begun in respect of the tax for                 
               a consolidated return year shall be applicable--                       
                        *     *    *    *    *    *    *                              
                    (2)  To each corporation the income of which was                  
               included in the consolidated return for such taxable                   
               year, notwithstanding that the tax liability of any                    
               such corporation is subsequently computed on the basis                 
               of a separate return under the provisions of �1.1502-                  
               75.                                                                    
               Petitioners counter that section 1.1502-77(c)(2), Income Tax           
          Regs., "is an invalid exercise of the Secretary's rule-making               
          authority."32  According to petitioners,                                    
               Nothing in section 1502 authorizes the Secretary to                    


          32  In support of their contention that sec. 1.1502-77(c)(2),               
          Income Tax Regs., is invalid, petitioners rely on J.A. Folger &             
          Co. v. Commissioner, 27 B.T.A. 1 (1932), which involved a year              
          that preceded the year (viz, 1929) in which art. 17(a)(2) of                
          Regulations 75, the original predecessor of sec. 1.1502-77(c)(2),           
          Income Tax Regs., first became effective.  In J.A. Folger & Co.,            
          a parent corporation (parent corporation) filed consolidated                
          returns for certain years for itself and two of its subsidiary              
          corporations (subsidiary corporations).  J.A. Folger & Co. v.               
          Commissioner, supra at 3.  The parent corporation entered into an           
          agreement with the IRS extending the period of limitations for              
          the "assessment of income and war profits tax due under any                 
          return made on behalf of that taxpayer" for one of those years.             
          Id.  (Emphasis added.)  That agreement made no mention of the               
          subsidiary corporations.  Id. at 7-8.  Under those facts, the               
          Board of Tax Appeals held in J.A. Folger & Co. v. Commissioner,             
          supra at 7-8, that the agreement that the parent corporation                
          entered into with the IRS did not extend the period of limita-              
          tions for the assessment of tax against the subsidiary corpora-             
          tions.  J.A. Folger & Co. is factually distinguishable from the             
          instant case.  The Forms 872 executed by Amax and Cyprus Amax,              
          respectively, identified the "taxpayer(s)" as "Amax Inc. and                
          Consolidated Subsidiaries" or "Amax Inc. and Consolidated Subs",            
          and not just Amax.                                                          





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