Davis v. Commissioner

20 B.T.A. 931, 1930 BTA LEXIS 2003

Opinion

OPINION.

MaRQ-dftte:

The exact issue involved in this proceeding was presented to us by the present petitioner for the year 1922 in C. R. Davis, 10 B. T. A. 1233. We there held that the compensation received by the petitioner’s wife from the Wisconsin Furniture Co. was not taxable to her husband because there existed a definite agreement between them that her salary should be her separate property. The status of Mrs. Davis’ salary was the same in 1924 as it had been in 1922.

It is clear that husband and wife may, under California law, enter into an agreement whereby the wife’s earnings will not become community property, and where such an agreement exists, the salary received by the wife is her separate property. Section 158, Civil Code of California; Wren v. Wren, 34 Pac. 775; Louis Gassner, 4 B. T. A. 1071; Blair v. Roth, 22 Fed. (2d) 932. Such an agreement existed between the petitioner and his wife with respect to her salary for 1924.

We are of the opinion that the decision in C. R. Davis, supra, is sound and is decisive of the present inquiry. We therefore hold that the salary in question is not taxable to the petitioner. See also Frank E. Wall, 4 B. T. A. 915; Harry S. Goldberg, 4 B. T. A. 1073, and Hyman Levine, 8 B. T. A. 298.

Judgment mill be entered under Bule 50.