SIBLEY, Circuit Judge.
P. O’B. Montgomery is a construction engineer residing in Texas. In his income tax return for 1936* he showed income from five construction contracts, the largest being with the State of Texas, for building the State Hall, for the Texas Centennial Exposition. This contract during the course of its execution was on July 1, 1936, assigned to a corporation, P. O’B. Montgomery, Incorporated, which returned as its income profits thereafter arising from the execution of the contract. The Commissioner determined that the entire profit on the contract was taxable to Montgomery, and assessed a deficiency accordingly. The Tax Court held that the contract was not for the personal services of Montgomery, was assignable, and that the profit accruing after the assignment belonged -to the corporation, which was organized legally and in good faith, and whose separate entity could not be ignored. 1 T. C. 1000. We are asked to overrule this decision and to sustain the Commissioner.
The contract is one whereby Montgomery, as contractor, agrees to provide all materials and perform all work for the construction of a building as shown by the drawings and specifications of named architects, under whose direction and according to whose decisions the work is to be done. The exterior was to be completed by June 6, 1936, and the whole contract by Aug. 30, 1936, with liquidated damages of $150 per day for delay. A bond was given for performance of the contract. Payments were to be made twice per month on the architects’ certificates of the work done. It is not found what work had been finished by June 30, and what remained to be done,, but the whole was not completed till sometime in September. The profits on the work completed to June 30 were returned by Montgomery at $86,009. The profits on work done afterwards, $80,209, were returned by the corporation. These figures-are not in dispute.
The corporation was regularly formed under Texas law by Montgomery, his wife,, and his brother, who were created the directors. Three shares of Class A stock, which had the power of voting in all matters coming before a shareholders’ meeting, were authorized, Montgomery subscribing for two shares and his wife one. Ninety-seven shares of Class B stock were authorized, and one taken by the brother. The remainder was issued thirty-two shares, each to the three children of Montgomery. These shares could vote only on certain extraordinary matters as provided by Texas law. The par value of each was $10,, and Montgomery paid for that issued to the children. The life of the corporation was fifty years. It was authorized to build and repair buildings and to own and prepare materials therefor. It made two or more unsuccessful bids for other contracts, but ceased doing business and was dissolved in October, 1938. Until then it kept books, paid corporation taxes, held corporate meetings and kept corporate records, and functioned in a normal manner. Mont[315] gomery was president and general manager, and his wife secretary, but neither was paid any salary. The profits arising from the assigned State contract were regularly returned as income by the corporation, and dividends were regularly declared to the stockholders and returned for them as their income. Those going to the Montgomery children ultimately went into a trust for their benefit.
After the contract was assigned on July 1, the corporation took over the business, including the bookkeeper, several construction engineers, and the workmen, conducting everything as Montgomery had previously done. It is testified he himself did about what he had done before, but it is not stated what that was. He had other construction jobs besides the one assigned. The consideration expressed in the assignment was “$1.00 and the assumption by P. O’B. Montgomery, Inc., of all the losses and liabilities that may hereafter arise in connection with the performance of the contract”. No consent to the assignment by the State appears.
We agree with the Tax Court that the contract was assignable. It did not employ Montgomery as an engineer, or require any personal service of him. It was a business contract to furnish labor and material and deliver a finished building. If Montgomery had died his administrator would be bound to perform. The contract indeed expressly binds “the said parties, their heirs, successors, executors, administrators and assigns”, showing that assignment was contemplated. It may be, however, that Montgomery, without the special consent of the State, would not by his assignment be relieved of his personal liability, and hence the assumption by the assignee of all “losses and liabilities” was not meaningless, but a real consideration.
The Tax Court has found also that the corporation was legally and regularly organized, for no fraudulent purpose, and with a small but fully paid in capital; that it performed this contract, earned and accounted for the profit made, and attempted to secure other contracts. It lasted over two years before it was abandoned. Must it, as a matter of law, be ignored for income tax purposes?
The general rule is that for such purposes the corporate entity is to be recognized, even when wholly owned by persons who would otherwise be taxed. Burnet v. Clark, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397; Burnet v. Commonwealth Imp. Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Planters’ Cotton Oil Co. v. Hopkins, 286 U.S. 332, 52 S.Ct. 509, 76 L.Ed. 1135. Here the corporation is owned principally by stockholders other than Montgomery. It cannot be said that he and it are practically one. If we would attempt to look through the corporation we would mainly see not this taxpayer, but his children. As the Tax Court says, Montgomery and his wife were moved to make a gift to their children in creating the corporation. Whether they gave them merely the $960 which they paid in for the stock, or a more valuable interest in the State Hall contract, might be a question touching gift taxation, but is not the question here. Though the contract seemed profitable on July 1, when assigned, it might have proven otherwise. Fire, storm, strikes, or other causes might have produced a loss. If it had, it would have been the business loss of the corporation, and not available to Montgomery to reduce the profit he had made before July 1. So also the profit, whether the contract be regarded as a gift or a thing sold to the corporation, was not Montgomery’s profit personally.
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SIBLEY, Circuit Judge.
P. O’B. Montgomery is a construction engineer residing in Texas. In his income tax return for 1936* he showed income from five construction contracts, the largest being with the State of Texas, for building the State Hall, for the Texas Centennial Exposition. This contract during the course of its execution was on July 1, 1936, assigned to a corporation, P. O’B. Montgomery, Incorporated, which returned as its income profits thereafter arising from the execution of the contract. The Commissioner determined that the entire profit on the contract was taxable to Montgomery, and assessed a deficiency accordingly. The Tax Court held that the contract was not for the personal services of Montgomery, was assignable, and that the profit accruing after the assignment belonged -to the corporation, which was organized legally and in good faith, and whose separate entity could not be ignored. 1 T. C. 1000. We are asked to overrule this decision and to sustain the Commissioner.
The contract is one whereby Montgomery, as contractor, agrees to provide all materials and perform all work for the construction of a building as shown by the drawings and specifications of named architects, under whose direction and according to whose decisions the work is to be done. The exterior was to be completed by June 6, 1936, and the whole contract by Aug. 30, 1936, with liquidated damages of $150 per day for delay. A bond was given for performance of the contract. Payments were to be made twice per month on the architects’ certificates of the work done. It is not found what work had been finished by June 30, and what remained to be done,, but the whole was not completed till sometime in September. The profits on the work completed to June 30 were returned by Montgomery at $86,009. The profits on work done afterwards, $80,209, were returned by the corporation. These figures-are not in dispute.
The corporation was regularly formed under Texas law by Montgomery, his wife,, and his brother, who were created the directors. Three shares of Class A stock, which had the power of voting in all matters coming before a shareholders’ meeting, were authorized, Montgomery subscribing for two shares and his wife one. Ninety-seven shares of Class B stock were authorized, and one taken by the brother. The remainder was issued thirty-two shares, each to the three children of Montgomery. These shares could vote only on certain extraordinary matters as provided by Texas law. The par value of each was $10,, and Montgomery paid for that issued to the children. The life of the corporation was fifty years. It was authorized to build and repair buildings and to own and prepare materials therefor. It made two or more unsuccessful bids for other contracts, but ceased doing business and was dissolved in October, 1938. Until then it kept books, paid corporation taxes, held corporate meetings and kept corporate records, and functioned in a normal manner. Mont[315] gomery was president and general manager, and his wife secretary, but neither was paid any salary. The profits arising from the assigned State contract were regularly returned as income by the corporation, and dividends were regularly declared to the stockholders and returned for them as their income. Those going to the Montgomery children ultimately went into a trust for their benefit.
After the contract was assigned on July 1, the corporation took over the business, including the bookkeeper, several construction engineers, and the workmen, conducting everything as Montgomery had previously done. It is testified he himself did about what he had done before, but it is not stated what that was. He had other construction jobs besides the one assigned. The consideration expressed in the assignment was “$1.00 and the assumption by P. O’B. Montgomery, Inc., of all the losses and liabilities that may hereafter arise in connection with the performance of the contract”. No consent to the assignment by the State appears.
We agree with the Tax Court that the contract was assignable. It did not employ Montgomery as an engineer, or require any personal service of him. It was a business contract to furnish labor and material and deliver a finished building. If Montgomery had died his administrator would be bound to perform. The contract indeed expressly binds “the said parties, their heirs, successors, executors, administrators and assigns”, showing that assignment was contemplated. It may be, however, that Montgomery, without the special consent of the State, would not by his assignment be relieved of his personal liability, and hence the assumption by the assignee of all “losses and liabilities” was not meaningless, but a real consideration.
The Tax Court has found also that the corporation was legally and regularly organized, for no fraudulent purpose, and with a small but fully paid in capital; that it performed this contract, earned and accounted for the profit made, and attempted to secure other contracts. It lasted over two years before it was abandoned. Must it, as a matter of law, be ignored for income tax purposes?
The general rule is that for such purposes the corporate entity is to be recognized, even when wholly owned by persons who would otherwise be taxed. Burnet v. Clark, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397; Burnet v. Commonwealth Imp. Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Planters’ Cotton Oil Co. v. Hopkins, 286 U.S. 332, 52 S.Ct. 509, 76 L.Ed. 1135. Here the corporation is owned principally by stockholders other than Montgomery. It cannot be said that he and it are practically one. If we would attempt to look through the corporation we would mainly see not this taxpayer, but his children. As the Tax Court says, Montgomery and his wife were moved to make a gift to their children in creating the corporation. Whether they gave them merely the $960 which they paid in for the stock, or a more valuable interest in the State Hall contract, might be a question touching gift taxation, but is not the question here. Though the contract seemed profitable on July 1, when assigned, it might have proven otherwise. Fire, storm, strikes, or other causes might have produced a loss. If it had, it would have been the business loss of the corporation, and not available to Montgomery to reduce the profit he had made before July 1. So also the profit, whether the contract be regarded as a gift or a thing sold to the corporation, was not Montgomery’s profit personally.
If the income had been pay for Montgomery’s personal services the case would be otherwise, for by no. sort of assignment or prior arrangement, which is not a bona fide hiring or partnership, can one be divorced from his personal earnings as his taxable income. Lucas v. Earle, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Jones v. Page, 5 Cir., 102 F.2d 144; Saenger v. Commissioner, 5 Cir., 69 F.2d 631. Montgomery continued to supervise the business, but how much time he gave to it does not appear. What the State paid was not as compensation for his time and effort, but for the materials and labor and the building that was produced. If anyone owed him for his services it was the corporation for which he acted.
The case is not like Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655, where a man cut coupons from a bond shortly before due and gave them to his son, and the coupons were held to be the income of the owner of the bond; nor like Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81, where insurance renewals, already earned, were assigned gratis to be collected, and were [316] held to be still the assignor’s income. Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, is also cited, but that involved a short term declaration of trust for the benefit of declarant’s wife, over which he had full control, she having no power of disposal, and the reversion being to himself. Montgomery made no short term gift to his children with reversion to himself. He gave absolutely and finally the shares of stock. The control he and his wife had over the corporation was in their right as stockholders and directors, and subject to the law regulating those relationships, and to the power of a court of equity if abused. A lawfully organized and operated business corporation is not the equivalent of a trust.
Here, whether by gift or sale, Montgomery on July 1 disposed of the contract finally and absolutely, “the tree and its fruits”, reserving nothing to himself. His only benefit is his slight stock ownership. Compare Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465. We think the prosecution of the work after July 1, though it had apparently been well organized before, was a business, one within the corporation’s charter powers, and attended with business risks, and that its profits belong to the corporation. That the corporation was organized through a gift of money by Montgomery to his children, and that he has to some extent since served it without charge, does not alter the matter. The judgment of the Tax Court is according to the law, and is in both cases
Affirmed.