First Surety Corp. and its subsidiaries for 1971 and 1973 through 1978. Respondent determined that petitioner was entitled to an interest expense deduction of $2,453,394 for the short period and that the rest of the claimed interest deduction, or $11,306,000, must be claimed in equal portions over the next 9 succeeding taxable years.

I. Consolidated Return Regulations

Section 1501 provides that an affiliated group of corporations may file a single consolidated return in lieu of separate returns. The section further provides that in the case of a corporation which is a member of the affiliated group for a fractional part of the year, the consolidated return shall include the income of such corporation for such part of the year as it is a member of the affiliated group. If the consolidated return of an affiliated group includes the income of a corporation for only a fractional part of the year, then the income for the part not included in the consolidated return must be included in a separate return. Sec. 1.1502-76(b)(2), Income Tax Regs. The regulations provide the following example of the operation of this rule: Corporations P and S, a group of corporations, filed a consolidated return for the calendar year 1966. As of the close of June 30, 1967, all of the stock of S was sold to individual A. P must file a consolidated return for 1967 including P's income for the entire taxable year and the income of S for the period of January 1, 1967, through June 30, 1967. S must file a separate return for the period July 1, 1967, through December 31, 1967. [Sec. 1.1502-76(b)(3), Example (2), Income Tax Regs.]

If the taxable income of a corporation must be included in part in a consolidated return and in part in a separate return, the taxable income to be reported in each such return is determined on the basis of the corporation's income as shown on its permanent records, including work papers. Sec. 1.1502-76(b)(4)(i), Income Tax Regs.

The regulations also provide that any period of less than 12 months for which either a separate return or a consolidated return is filed under the provisions of section 1.1502-76, Income Tax Regs., shall be considered as a separate taxable year. Sec. 1.1502-76(d), Income Tax Regs. Finally, the regulations provide that "The Code, or other law, shall be applicable to the group to the extent the

regulations do not exclude its application." Sec. 1.1502-80, Income Tax Regs.

Respondent concedes that SoCal filed a separate shortperiod return because it was required to do so by the consolidated return regulations. Respondent also concedes that had SoCal's taxable year not been bifurcated the full amount of the contested interest would be deductible on the 1982 consolidated Federal income tax return of its affiliated group. Respondent does not contend that in claiming the interest expense on its short-period return SoCal failed to comply with the consolidated return regulations.

Respondent argues that, despite SoCal's compliance with the consolidated return regulations, the interest expense deduction it claimed for the short period is limited by section 461(e).

II. Limitation of Interest Expense Deduction Under Section 461(e)

Prior to 1962, the year section 461(e) was enacted, domestic building and loan associations were permitted by section 593 to deduct, as an addition to their bad debt reserves, an amount virtually equal to their entire taxable income. As part of the Revenue Act of 1962, Congress amended section 593 to reduce the statutory percentage of taxable income available as a deduction for addition to bad debt reserves. Revenue Act of 1962, Pub. L. 87-834, sec. 6, 76 Stat. 977, 1962-3 C.B. 111, 127.

Due to this change, domestic building and loan associations would be liable for appreciably increased income tax. Congress was concerned that, by postponing the payment of interest accrued during 1962, domestic building and loan associations would bunch interest deductions into 1963 or subsequent years and thus avoid a tax liability. Section 461(e) was added to the Code to prevent such manipulation. H. Rept. 2544, 87th Cong., 2d Sess. (1962), 1962-3 C.B. 1235.

Section 461(e) provides, in relevant part, that except as provided in regulations prescribed by the Secretary, amounts paid or credited to the accounts of depositors as interest by a domestic building and loan association are not allowable as a deduction for the taxable year to the extent

the amounts are paid or credited for periods representing more than 12 months. Any amount disallowed by section 461(e) is allowable as a deduction for such other taxable year as the Secretary determines to be consistent with the statute. Sec. 461(e).

As to a short period, the regulations provide that amounts of dividends or interest paid or credited shall not be allowed as a deduction to the extent that such amounts are paid or credited for a period representing more than the number of months in such short period. Sec. 1.461-1(e)(1)(i), Income Tax Regs.; see sec. 1.461-1(e)(2)(i) and (ii), Example (3), Income Tax Regs.

The amount of interest expense disallowed by section 461(e) is allowable, subject to limitations, as a deduction for other periods as provided in the regulations. See sec. 1.461-1(e)(3), Income Tax Regs. The regulations provide that in any case in which it is established to the satisfaction of respondent that the taxpayer does not intend to avoid taxes, one-tenth of the amount disallowed by section 461(e) shall be allowed as a deduction in each of the 10 succeeding taxable years commencing with the taxable year for which the amount is disallowed. Sec. 1.461-1(e)(3)(ii), Income Tax Regs.

Respondent argues that the interest expense deduction claimed by SoCal on its short-period return is limited by section 461(e) to the amount of interest which accrued during the short period, plus one-tenth of the remainder. We disagree.

III. Section 461(e) Is Inapplicable to a Separate Return Filed Pursuant to Consolidated Return Regulations

In Erwin Properties, Inc. v. Commissioner, 43 T.C. 888 (1965), the taxpayer was a corporation which became a member of an affiliated group of corporations on May 1, 1959. The taxpayer had previously filed its income tax returns on a calendar year basis. The affiliated group filed a consolidated return for the fiscal year ending April 30, 1960. Pursuant to section 1.1502-76(b)(2), Income Tax Regs., the taxpayer filed a return on June 6, 1960, for the short period January 1, 1959 through April 30, 1959. Respondent determined that under the provisions of section 443(b)(1) the

taxpayer was required to annualize its income, giving rise to a deficiency. Because in filing its return for the short period the taxpayer had complied with section 1.1502-76(b)(2), Income Tax Regs., and the regulation did not require annualization for the short period, we held that section 443(b)(1) was inapplicable.

As in Erwin Properties, petitioner was required by section 1.1502-76(b)(2), Income Tax Regs., to file a separate shortperiod return. As did the taxpayer in Erwin Properties, petitioner has fully complied with the consolidated return regulations. We find that section 1.1502-76(b)(4), Income Tax Regs., which directs petitioner to allocate taxable income to its separate return in accordance with its permanent records, excludes the application of section 461(e). See sec. 1.1502-80, Income Tax Regs. We therefore hold that petitioner is entitled to the entire interest expense deduction it claimed on its separate return for December 23, 1982 through December 31, 1982.

Clear Reflection of Income

In addition to his section 461(e) argument, respondent contends that SoCal's method of accounting for interest expense for the short period is unacceptable under section 446(b) because it does not clearly reflect income. Respondent argues that SoCal must deduct interest expense as it accrues, not when it is paid or credited.

Section 591 provides that a domestic building and loan association is allowed a deduction for amounts paid or credited to depositors as interest if such amounts are withdrawable on demand, subject only to customary notice of intention to withdraw. We have held that respondent may not reject, as not providing a clear reflection of income, a method of accounting employed by the taxpayer which is specifically authorized in the Code and has been applied on a consistent basis. Hallmark Cards, Inc. v. Commissioner, 90 T.C. 26, 31 (1988). Because SoCal consistently deducted interest expense as provided in section 591, we reject respondent's contention that its method of accounting does not clearly reflect income.

In light of the foregoing,

Decision will be entered for the petitioner.

Reviewed by the Court.

NIMS, CHABOT, PARKER, KÖRNER, SHIELDS, HAMBLEN, CLAPP, and JACOBS, JJ., agree with the majority opinion. WHALEN and COLVIN, JJ., concur in the result only. SWIFT, J., did not participate in the consideration of this opinion.

WELLS, J., concurring: In his dissent, Judge Gerber disagrees with the majority's holding that the consolidated return regulations preempt section 461(e). While Judge Gerber questions the majority's reasoning, he does not question the result and declines to decide what the result should be in the instant case. Without specifically disagreeing with the majority's holding, I concur in the result reached by the majority on grounds separate from those upon which the majority relies. More particularly, I believe the regulation respondent seeks to enforce finds no support in the Code.

Section 461(e) does not apply in the instant case. Section 461(e) prohibits savings and loan associations from deducting dividends or interest "to the extent such amounts are paid or credited for periods representing more than 12 months." (Emphasis supplied.) The amounts deducted in the instant case represent a period not in excess of 6 months. Majority op. at 37. Therefore, by its express terms, section 461(e) does not apply to the facts at hand.

While the instant case falls within the language of section 1.461-1(e)(1)(i), Income Tax Regs., which addresses dividends and interest representing periods in excess of a short period, that provision on its face is inconsistent with the express language of section 461(e), which addresses solely amounts representing more than 12 months.

In Gamman v. Commissioner, 46 T.C. 1, 6-8 (1966), we held invalid a regulation which provided that if notes given by a subchapter S corporation were "actually stock," they were automatically a second class of stock, resulting in the