Gordon v. Commissioner

5 B.T.A. 1047, 1927 BTA LEXIS 3691

• Court: United States Board of Tax Appeals
• Decided: January 10, 1927
• Docket: Docket No. 5806.
• Status: Published

Opinion

OPINION.

Trammell:

The question presented in this appeal is whether the income received by the petitioner from the Commonwealth of Kentucky, as compensation for services rendered in the handling of litigation and other legal work for the Commonwealth under the contract set out in the findings of fact, is exempt from Federal income tax. It is not contended that the petitioner was an officer of the Commonwealth of Kentucky, and clearly he was not. This leaves for consideration the question as to whether he was an employee of the Commonwealth of Kentucky, and if not an employee, whether he was such an agency or instrumentality of the Commonwealth through which it exercised an essential governmental function as to bring the case within the scope of those decisions of the United States Supreme Court holding that the very nature of our constitutional system of dual sovereign governments is such as impliedly prohibits the Federal Government from taxing the instrumentalities of a State government.

The petitioner’s services were of a temporary character and not for any specific or definite period of time, and were in connection with one matter only, viz, the collection of the estate tax due the Commonwealth from the Bingham estate. With respect to one employed for a special or single transaction, the United States Sup-preme Court, in the case of the Louisville, Evansville & St. Louis R. R. Co. v. Wilson, 138 U. S. 501, said:

The terms “ officers ” and “ employés ” both, alike, refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employé. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual, retained for a single suit, is not his employé. It is true, he has engaged to render services ; but his engagement is rather that of a contractor than that of an employé.

The Commonwealth of Kentucky was interested in the discovery of the nature and extent of the estate subject to tax and in the recovery of the taxes due. The means of ascertaining the information and the collection of the taxes were left to the petitioner and his associates, subject only to the judgment of the Attorney General with respect to the necessity or propriety of litigation, but even in that respect the judgment of the Attorney General was not by the terms of the contract made controlling on the petitioner. When proceedings were instituted, under the terms of the contract, the petitioner and his associates were solely responsible for the conduct of the case and for the results obtained. The services rendered were no different than those which a lawyer would ordinarily render to a private client. The taxpayer could use his own discretion as to the hours of his work, over which the Commonwealth had no control. He was free to use his own efforts according to his own judgment and pleasure as to the manner of performing his work, subject, as above stated, to the advice and judgment of the Attorney General as to the propriety of litigation which, however, was not made binding upon him under the terms of the contract. The relationship of master and servant did not exist. He was free to determine what was to be done and how it should be done. The petitioner, in our opinion, was, therefore, not an employee of the Commonwealth bf Kentucky, but his position was that of an independent contractor with the Commonwealth. Metcalf & Eddy v. Mitchell, 269 U. S. 514.

Inasmuch as the petitioner was neither an officer nor an employee of the Commonwealth of Kentucky, his case does not come within the scope of the decisions of the United States Supreme Court in the cases of Collector v. Day, 11 Wall. 113, and Dobbins v. Commissioners, 16 Pet. 435. Those cases held that the officers and employees of a State or the Federal Government who administer its laws and carry on essential governmental functions are immune from taxation by the other government.

Officers and employees are the usual means by which a State carries into execution its sovereign powers, and, with respect to taxes upon individuals or their income, the Supreme Court has not gone beyond those decisions, in which there was no question but what the individuals were officers or employees. The petitioner was one who, as a private practitioner, was retained by the Commonwealth of Kentucky to represent it as a client in a particular matter. He rendered services in that case without in any way divesting himself of the character of a private practitioner of law and only by virtue .of a special contract for the particular matter. It is contended, however, that even if he was not an officer or employee of the Commonwealth, he was nevertheless, by virtue of his' employment, an instrumentality or agency by or through which the Commonwealth functioned in the exercise of an essential sovereign power, viz, the collection of a tax. It is contended that the compensation received by him was for services rendered as such instrumentality or agency and is, therefore, exempt from Federal taxation.

In the case of the compensation of an officer or employee of a State, the imposition of the Federal tax operates to diminish his compensation, is a direct burden upon the State, and impairs it in the exercise of its sovereign powers. Dobbins v. Commissioners and Collector v. Day, supra. It is, therefore, sufficient, in order to establish the exemption from Federal taxation of compensation received for services of such a person, to show that he is an officer or employee of the State.

In the case of a person employed by a State as a contractor engaged in rendering services in a particular matter or transaction, the same considerations do not of necessity obtain. It is true that compensation is a necessary incident of such services as well as in other employment, but the important question to be considered is whether a Federal tax imposed upon the compensation of such a contractor will have the effect of impairing the efficiency of the agencies or instrumentalities of the State government in any substantial way or amount to an interference with the exercise of a sovereign power. There is no evidence 'of such fact here. It does not appear that the Commonwealth was interfered with to any extent on account of the tax in securing the petitioner’s services or that it did not receive as efficient service without any additional financial or other burden on that account.

In the case of Metcalf & Eddy v. Mitchell, supra, the United States Supreme Court said:

* * * The tax is imposed on the income of one who is neither an officer nor an employee of government and whose only relation to it is that of contract, under which there is an obligation to furnish service, for practical purposes not unlike a contract to sell and deliver a commodity.

The court in that case also said:

The tax is imposed without discrimination upon income whether derived from services rendered to the state or services rendered to private individuals. In such a situation it cannot be said that the tax is imposed upon an agency of government in any technical sense, and the tax itself cannot be deemed to be an interference with government, or an impairment of the efficiency of its agencies in any substantial way.

In conclusion, the court in the case of Metcalf & Eddy v. Mitchell, supra, said:

But we do decide that one who is not an officer or employee of a state, does not establish exemption from federal income tax merely by showing that his income was received as compensation for service rendered under a contract with a state; and when we take the next step necessary to a complete disposition of the question, and inquire into the effect of a particular tax, on the functioning of the state government, we do not find that it impairs in any substantial manner the ability of plaintiffs in error to discharge their obligations to the state or the ability of a state or its subdivisions to procure the services of private individuals to aid them in their undertakings. Cf. Central Pacific Railroad v. California, 162 U. S. 91, 126. We therefore conclude that the tax * * * was properly asssesed.

The Revenue Act of 1921, which was in effect during the taxable year involved, did not by its terms exempt the salaries of officers and employees of a State from the income tax, but section 1211 of the Revenue Act of 1926, which is retroactive and effective as to all prior revenue acts, provides as follows;

Any taxes imposed by the Revenue Act of 1924 or prior revenue Acts upon any individual in respect of amounts received by him as compensation for personal services as an officer or employee of any State or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded.

The above section is the only provision of the statute with respect to the compensation received by State officers and employees. That section does not expressly exempt the compensation of officers or employees of the State from the Federal income tax. It, however, clearly indicates that it was not the intention of Congress to tax compensation for personal services rendered by an officer or employee of a State. In effect, it merely incorporates into the statute the principle that had been long established by judicial construction and may fairly be considered as an interpretation of the different revenue acts. The United States Supreme Court had long prior to the enactment of the Revenue Act of 1926 held that the Federal Government had no power to levy or collect a tax upon the compensation of officers or employees of States. The above section of the statute, however, has no relation to the question as to whether the compensation of individuals who were neither officers nor employees of a State government should or should not be subjected to the Federal tax.

Section 213 (a) of the Revenue Act of 1921 reads in part as follows:

See. 213. That for tbe purposes of this title (except as otherwise provided In section 233) the term “ gross income ”—

(a) Includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of the President of the United States, the judges of the Supreme and inferior courts of the United States, and all other officers and employees, whether elected or appointed, of the United States, Alaska, Hawaii, or any political subdivision thereof, or the District of Columbia, the compensation received as such), of whatever kind and in whatever form paid, or from professions, vocations, trades * * *.

The above section is clearly broad enough to cover and to impose a tax upon the compensation received by this petitioner for services rendered in his professional capacity to the Commonwealth of Kentucky as an attorney. There is no other provision contained in the statute which would exempt such compensation, and his relationship to the Commonwealth was not such as to bring him within the scope of the decisions of the Supreme Court holding that the Federal Government is without authority to levy a tax upon the agencies or instrumentalities of the States.

Judgment will "be entered on 15 dags’ notice, under Bule 50.