OPINION.
Black, Judge:
There is but one issue in this proceeding, and that is whether for income tax purposes Frances G. Theurkauf should be recognized in the taxable year 1944 as a partner in the partnership of F. A. Marsily & Co. The Commissioner does not dispute that a partnership under that name existed and he has recognized Frances G. Theurkauf and James E. Kearney as partners, but has refused to give recognition to the interest claimed by Frances and has taxed her claimed interest in the partnership profits to her husband, the petitioner herein. The Commissioner contends that the instant case is controlled directly by the Supreme Court’s decision in Commissioner v. Tower, 327 U. S. 280, since Frances performed no services for the partnership and since, as he contends, she contributed no capital to it .which originated with her. The respondent says in his brief: “Except for the modification of the partnership in 1941, this case is practically on all fours with Commissioner v. Tower, supra.” The Supreme Court stated the facts in the Tower case, in part, as follows:
In 1937 substantial profits pointed to increased taxes. Respondent’s attorney and his tax accountant advised him that dissolution of the corporation and formation of a partnership with his wife as a principal partner, would result in tax saving and eliminate the necessity of filing various corporate returns. The suggested change was put into effect. August 25, 1937, respondent transferred 190 shares of the corporation’s stock to his wife on the condition that she place the corporate assets represented, hy these shares into the new partnership. Respondent, treating the stock transfer'to his wife as a gift valued at $57,000, later paid a gift tax of $213.44. Three days after the stock transfer the corporation was liquidated, a limited partnership was formed and a certificate of partnership was duly filed for record as required by Michigan law. According to the books, the value of the donated stock became the wife’s contribution to the partnership. The formation of the partnership did not in any way alter the conduct of the business, except that both Amidon and Tower ceased to draw salaries. By an agreement made shortly thereafter, a readjustment was made in the amount of profits each partner was to receive, under which Ami-don’s share became the equivalent of, if not more than, the amount of the salary he had previously drawn. Under the partnership agreement the respondent continued to have the controlling voice in the business, as to purchases, sales, salaries, the time of distribution of income, and all other essentials. Respondent’s wife, as a limited partner, was prohibited from participation in the conduct of the business. So far as appears, the part of her purported share of the partnership business she actually expended was used to buy what a husband usually buys for his wife such as clothes and things for the family or to carry on activities ordinarily of interest to the family as a group. [Italics supplied.]
In Francis E. Tower, 3 T. C. at page 401, we made a finding of fact as follows:
The gift of 190 shares of the corporate stock of the R. J. Tower Iron Works, Inc., made by petitioner to his wife in 1937 was not valid and complete in that the wife did not gain full dominion and control over the shares. * * *
Based upon this finding of fact, in our opinion in the Tower case, at page 404, we said:
Here, the transfer of the corporate stock by petitioner to his wife was more fanciful than actual, since there was no purpose to transfer the stock to her apart from the agreed plan that the gift would determine her interest in the partnership. The gift, however, was not an absolute and unconditional one. Its purpose and intent was not to vest absolute dominion over the shares in the wife, since she had no untrammeled freedom in their disposition and they were not subject to her own control and desires.
In view of the fact that the gift of the corporate stock by petitioner to his wife was not valid nor complete, it follows that she made no capital contribution to the partnership, and, since she admittedly rendered no services, it must be held that she was not a bona fide partner.
We think the facts in the instant case are distinguishable from those present in the Tower case, supra. As pointed out by the Supreme Court in the portion of its opinion from which we have quoted above and by our findings of fact in the Tower case, Tower transferred 190 shares of the corporation’s stock to his wife on the condition that she place the corporate assets represented by these shares into the partnership business. There was no such condition attached to the gift in the instant case. Petitioner testified that, when on or about October 9, 1936, he .made a gift to his wife of one-half of the stock of the F. A. Marsily & Co., no conditions whatever were attached to the gift, and that it was his intention to make the gift complete and irrevocable. On the strength of petitioner’s testimony, we have made a finding in our findings of fact that his gift of the stock to his wife was made “with intent to vest full, complete, and irrevocable legal ownership of the stock in Frances G. Theurkauf,” and that “she thereupon became the owner of the shares covered by the certificate issued to her and no conditions or limitations were attached to her ownership of them.”
Under these facts, when subsequently on October 31,1936, by agreement between Theurkauf and his wife Frances, the sole stockholders of F. A. Marsily & Co., the corporation of F. A. Marsily & Co. was liquidated and dissolved and its assets were transferred by the corporation, joined by petitioner and Frances as the sole stockholders of the corporation, to the new partnership of F. A. Marsily & Co., Frances made a contribution of capital to the partnership which belonged to her and she became a partner and was the owner of the interest which it was agreed she should have in the written partnership agreement. If this was true, as we think it was, in the organization of the first partnership on November 1, 1936, it would certainly be true in 1941, when the old partnership was dissolved because of the retirement of one of the partners, Peter Albert. It is the partnership organized in 1941, five years after the dissolution of the old corporation, with which we are presently concerned.
As we have already stated, the Commissioner relies heavily upon the Supreme Court’s decision in the Tower case, supra. In our opinion the substance of the Supreme Court’s decision in the Tower case was that the test in determining the bona fide character of a family partnership is to ascertain whether the partners really and truly intended to join together for the purpose of carrying on a business and sharing its profits, or whether the partnership was a mere sham, utilized for the purpose of reducing a taxpayer’s true tax liability by a pretended distribution of income. Such, in our view, is the interpretation given to the Tower case in the recent decision of the Supreme Court in Commissioner v. Culbertson, 337 U. S. 733. In the Culbertson case the Supreme Court said:
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION.
Black, Judge:
There is but one issue in this proceeding, and that is whether for income tax purposes Frances G. Theurkauf should be recognized in the taxable year 1944 as a partner in the partnership of F. A. Marsily & Co. The Commissioner does not dispute that a partnership under that name existed and he has recognized Frances G. Theurkauf and James E. Kearney as partners, but has refused to give recognition to the interest claimed by Frances and has taxed her claimed interest in the partnership profits to her husband, the petitioner herein. The Commissioner contends that the instant case is controlled directly by the Supreme Court’s decision in Commissioner v. Tower, 327 U. S. 280, since Frances performed no services for the partnership and since, as he contends, she contributed no capital to it .which originated with her. The respondent says in his brief: “Except for the modification of the partnership in 1941, this case is practically on all fours with Commissioner v. Tower, supra.” The Supreme Court stated the facts in the Tower case, in part, as follows:
In 1937 substantial profits pointed to increased taxes. Respondent’s attorney and his tax accountant advised him that dissolution of the corporation and formation of a partnership with his wife as a principal partner, would result in tax saving and eliminate the necessity of filing various corporate returns. The suggested change was put into effect. August 25, 1937, respondent transferred 190 shares of the corporation’s stock to his wife on the condition that she place the corporate assets represented, hy these shares into the new partnership. Respondent, treating the stock transfer'to his wife as a gift valued at $57,000, later paid a gift tax of $213.44. Three days after the stock transfer the corporation was liquidated, a limited partnership was formed and a certificate of partnership was duly filed for record as required by Michigan law. According to the books, the value of the donated stock became the wife’s contribution to the partnership. The formation of the partnership did not in any way alter the conduct of the business, except that both Amidon and Tower ceased to draw salaries. By an agreement made shortly thereafter, a readjustment was made in the amount of profits each partner was to receive, under which Ami-don’s share became the equivalent of, if not more than, the amount of the salary he had previously drawn. Under the partnership agreement the respondent continued to have the controlling voice in the business, as to purchases, sales, salaries, the time of distribution of income, and all other essentials. Respondent’s wife, as a limited partner, was prohibited from participation in the conduct of the business. So far as appears, the part of her purported share of the partnership business she actually expended was used to buy what a husband usually buys for his wife such as clothes and things for the family or to carry on activities ordinarily of interest to the family as a group. [Italics supplied.]
In Francis E. Tower, 3 T. C. at page 401, we made a finding of fact as follows:
The gift of 190 shares of the corporate stock of the R. J. Tower Iron Works, Inc., made by petitioner to his wife in 1937 was not valid and complete in that the wife did not gain full dominion and control over the shares. * * *
Based upon this finding of fact, in our opinion in the Tower case, at page 404, we said:
Here, the transfer of the corporate stock by petitioner to his wife was more fanciful than actual, since there was no purpose to transfer the stock to her apart from the agreed plan that the gift would determine her interest in the partnership. The gift, however, was not an absolute and unconditional one. Its purpose and intent was not to vest absolute dominion over the shares in the wife, since she had no untrammeled freedom in their disposition and they were not subject to her own control and desires.
In view of the fact that the gift of the corporate stock by petitioner to his wife was not valid nor complete, it follows that she made no capital contribution to the partnership, and, since she admittedly rendered no services, it must be held that she was not a bona fide partner.
We think the facts in the instant case are distinguishable from those present in the Tower case, supra. As pointed out by the Supreme Court in the portion of its opinion from which we have quoted above and by our findings of fact in the Tower case, Tower transferred 190 shares of the corporation’s stock to his wife on the condition that she place the corporate assets represented by these shares into the partnership business. There was no such condition attached to the gift in the instant case. Petitioner testified that, when on or about October 9, 1936, he .made a gift to his wife of one-half of the stock of the F. A. Marsily & Co., no conditions whatever were attached to the gift, and that it was his intention to make the gift complete and irrevocable. On the strength of petitioner’s testimony, we have made a finding in our findings of fact that his gift of the stock to his wife was made “with intent to vest full, complete, and irrevocable legal ownership of the stock in Frances G. Theurkauf,” and that “she thereupon became the owner of the shares covered by the certificate issued to her and no conditions or limitations were attached to her ownership of them.”
Under these facts, when subsequently on October 31,1936, by agreement between Theurkauf and his wife Frances, the sole stockholders of F. A. Marsily & Co., the corporation of F. A. Marsily & Co. was liquidated and dissolved and its assets were transferred by the corporation, joined by petitioner and Frances as the sole stockholders of the corporation, to the new partnership of F. A. Marsily & Co., Frances made a contribution of capital to the partnership which belonged to her and she became a partner and was the owner of the interest which it was agreed she should have in the written partnership agreement. If this was true, as we think it was, in the organization of the first partnership on November 1, 1936, it would certainly be true in 1941, when the old partnership was dissolved because of the retirement of one of the partners, Peter Albert. It is the partnership organized in 1941, five years after the dissolution of the old corporation, with which we are presently concerned.
As we have already stated, the Commissioner relies heavily upon the Supreme Court’s decision in the Tower case, supra. In our opinion the substance of the Supreme Court’s decision in the Tower case was that the test in determining the bona fide character of a family partnership is to ascertain whether the partners really and truly intended to join together for the purpose of carrying on a business and sharing its profits, or whether the partnership was a mere sham, utilized for the purpose of reducing a taxpayer’s true tax liability by a pretended distribution of income. Such, in our view, is the interpretation given to the Tower case in the recent decision of the Supreme Court in Commissioner v. Culbertson, 337 U. S. 733. In the Culbertson case the Supreme Court said:
The Tax Court’s isolation of “original capital” as an essential of membership in a family partnership also indicates an erroneous reading of the Tower opinion. We did not say that the donee of an intra-family gift could never become a partner through investment of the capital in the family partnership, any more than we said that all family trusts are invalid for tax purposes in Helvering v. Clifford, supra. The facts may indicate, on the contrary, that the amount thus contributed and the income therefrom should be considered the property of the donee for tax, as well as general law, purposes. * * *
In the instant case we think the facts do show that the amount of capital which Frances contributed to the partnership and her agreed percentage of the partnership profits should be considered her property for tax as well as other purposes. We have so found.
The Supreme Court also said in the Culbertson case:
* * * If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to be contributed presently by each is of such value to the partnership that the contributor should participate in the distribution of profits, that is sufficient. * * *
The instant case was heard and the briefs were filed before the Supreme Court decided Commissioner v. Culbertson, supra, but, of course, we must take notice of the Supreme Court’s decision in this later case. We think that, under the facts as detailed in our findings of fact and under the rationale of the Supreme Court’s decision in the Culbertson case, Frances should be recognized as a partner in the partnership of F. A. Marsily & Co. See O. H. Delchamps, 13 T. C. 281.
The evidence in this case does not show affirmatively that Mrs. Theurkauf was paid or credited with her share of the 1944 profits of the business amounting to $7,833.43. However, the Commissioner made no point either at the hearing or in his brief that she was not paid or credited with her share of the profits. Apparently she has been recognized as a partner in the business for several years and we have no reason to believe that she was not credited or paid her share of the profits from time to time.
As we said at the beginning of this opinion, respondent bases his entire contention that Frances was not a partner in the business during 1944 on the fact that she did not render any services to the business and did not, to use his language, “contribute any capital which originated with her,” relying strongly on the Tower case, supra. For reasons already stated, we think the Tower case is not applicable to the facts of the instant case.
Petitioner and the other active partner, James E. Kearney, were paid salaries commensurate with the value of their services to the partnership. Petitioner was paid $500 per month for his services, and Kearney was paid $75 a week for his services. Petitioner has reported for taxation $18,833.42 as his income from the partnership. This includes his salary of $6,000 and $7,833.42 as his share of the partnership profits. For reasons we have stated above, we hold that petitioner is not taxable on the $7,833.43 of the profits of the partnership which belonged to his wife under the partnership agreement. On this issue the Commissioner is reversed.
Reviewed by the Court.
Decision will be entered for the petitioner.