Ottolander v. Commissioner

5 B.T.A. 651, 1926 BTA LEXIS 2823

Opinion

OPINION.

Lansdon:

The contract of employment between the petitioner and the F and F Nurseries was oral and was to the effect that the peti tioner should receive for his services as office and sales manager a stated salary of $200 a month and, in addition thereto, a bonus or extra compensation equal to one-sixth of the cash profits of the employer.

We are convinced that the petitioner was not a member of the partnership operating the F and F Nurseries and was not entitled to receive any part of the distributive net earnings of such partnership. The petitioner testified that neither in the taxable year nor at any subsequent time did he receive any payment on account of the additional profits which the Commissioner has determined were earned by the partnership in 1920. From this evidence, which was not rebutted in any way, we conclude that the additional income upon which this deficiency is based was neither received nor accrued by the petitioner in the taxable year.

Judgment will be entered for the petitioner.

Giseen and Sternhagen not participating.