CAMERON, Circuit Judge.
The question presented by this appeal1 is whether the record warrants the Tax Court’s conclusion that taxpayer remained the substantial owner of a business managed and operated by him, despite transfer of legal title to the business assets to his wife, so that the fifty percent portion of the business income ascribed to the wife remained taxable to the taxpayer under Section 22(a) of the Internal Revenue Code of 1939, 26 U.S. C.A. The taxpayer, W. T. S. Montgomery, had, for the years 1946 and 1947, returned and paid taxes on fifty percent of the net income of the business and his wife the other fifty percent. The Commissioner redetermined the tax and assessed all of it against the husband, the Tax Court sustained the Commissioner,2 and the husband filed this petition for review.
For many years prior to September 6, 1939, petitioner owned and operated as sole proprietor a business known as Jacksonville Blow Pipe Company. On that date one of his employees was involved in an automobile accident resulting in [474]*474the death of a person. Petitioner set about at once, through his attorney, to malee a transfer of his business, constituting his chief asset, so as to keep from being wiped out by a possible judgment resulting from said death and to the end that his other creditors might not be left with uncollectible debts.
At the outset, he gave a mortgage to himself as executor of his father’s estate to secure an existing indebtedness of $5,-550.03, and this remained of record for something over a year. In the meantime, a $50,000.00 damage suit had been brought against him, and he and his lawyer began considering other plans possibly better adapted to the accomplishment of the stated ends. The lawyer finally advised, and petitioner agreed, that the mortgage should be can-celled, the business conveyed to his father’s estate and by the estate to his wife by way of distribution of the estate’s assets. This plan was put before the heirs of the estate in a letter from petitioner dated October 1, 1940 and all acquiesced in it. It was finally decided by the lawyer, however, that this circuitous procedure would be avoided by a direct conveyance from petitioner to his wife in consideration of $4,000.00. The wife borrowed $4,000.00 from a corporation owned by members of the husband’s family, which was paid to petitioner and used by him in partial liquidation of existing debts.3
On October 14,1940, petitioner executed a deed covering the real estate and a bill of sale covering personal property conveying all of the property and assets of the Blow Pipe Company to his wife, who immediately gave notice to the bank of the transfer with directions that checks be signed by herself, her father, an employee of the business, or her husband. The Collector of Internal Revenue was consulted concerning the tax angles of the transfer. Simultaneously the mortgage originally given the estate was released, the $4,000.00 was received by petitioner from his wife, and a verbal contract was entered into between the husband and wife under which the husband was employed for an undetermined period to manage the business, for which services he was to be paid fifty percent of its net profits. The conveyances were placed of record October 30, 1940. May 14, 1945, the wife published notices under the Florida “Fictitious Name Statute” 4 that she was the party interested in Jacksonville Blow Pipe Company, and June 13, 1945, registered a declaration with the Clerk of the Circuit Court that her interest therein was one hundred percent. Meanwhile, December 4, 1944, judgment for $35,000.00 had been entered against petitioner in the damage suit, which was settled and satisfied in November, 1945 by the payment of $10,-000.00 which was taken largely from the business and charged against petitioner, who reported the loss in his 1945 income tax return.
Following the transfers above mentioned petitioner continued, under his agreement, to manage the business of the Blow Pipe Company, although, beginning as of the time of the transfers, both the wife and her father exercised a greater measure of control than had been attempted before the transfers. Beginning with the year 1942 and continuing through the tax years, U. S. Treasury Forms 1099 were filed with the Commissioner showing the wife as owner of the business and petitioner as an employee together with the amount paid to him during the respective years. The exact extent to which the wife and her father intervened in the management of the business is the subject of dispute. The husband was an engineer and experienced operator of the blow pipe business while the wife had had little or no business experience. We are asked to reverse the action of the Tax Court in sustaining the Commissioner’s determination that all of the income from the business for the two years in question was [475]*475earned by the husband as owner and operator of the business and that none of the income should be ascribed to the wife.
The holding of the Tax Court that the business was not actually and completely transferred to the wife so as to make her the true owner thereof is without support in the evidence. Indeed, a reading of its decision and the Government’s brief indicates that both failed to differentiate between title to property, with all of its incidents, and management of the business to which that property was dedicated by its owner. The decisions of this Court have made that distinction clear, but the Tax Court did not grasp nor apply them.
Our language in Henson v. Commissioner, 5 Cir., 1949, 174 F.2d 846, 847, supplies the answer to the questions before the Tax Court:
“ * * * it is undisputed that after the date of the transfer, which was admittedly a bona fide gift and effective to pass title to the property under Georgia law, that petitioner’s wife was the sole and absolute owner of the Company, with no strings attached. She had the right and absolute power to dispose of it by gift, sale, or will. She further had the power to borrow money on account of the business * * *. Under and by virtue of the gift to his wife, petitioner had irrevocably divested himself of all legal title, right, interest, and control5 over the business, and remained as manager of the company solely at his wife’s pleasure. * * *
“ " * * This case involves a valid and unconditional gift, complete and effectual for all purposes, and is clearly distinguishable from those family partnership tax cases relied upon by the Commissioner. * * *
“The Tax Court has evidently, in its decision, failed to recognize the distinction between actual control over income-producing property with consent of the true owner, and the absolute right of control over both the property and the income derived therefrom which adheres in a valid and legal title. The controlling question in such cases is, therefore, not whether actual control over the property is exercised, but whether the right of control in fact exists; not who earns the income from such property, but who has the right to receive it. * * *
“Every owner of a business, particularly those of limited business experience, has the undoubted right to have it managed by another, even though that person be married to the owner.
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CAMERON, Circuit Judge.
The question presented by this appeal1 is whether the record warrants the Tax Court’s conclusion that taxpayer remained the substantial owner of a business managed and operated by him, despite transfer of legal title to the business assets to his wife, so that the fifty percent portion of the business income ascribed to the wife remained taxable to the taxpayer under Section 22(a) of the Internal Revenue Code of 1939, 26 U.S. C.A. The taxpayer, W. T. S. Montgomery, had, for the years 1946 and 1947, returned and paid taxes on fifty percent of the net income of the business and his wife the other fifty percent. The Commissioner redetermined the tax and assessed all of it against the husband, the Tax Court sustained the Commissioner,2 and the husband filed this petition for review.
For many years prior to September 6, 1939, petitioner owned and operated as sole proprietor a business known as Jacksonville Blow Pipe Company. On that date one of his employees was involved in an automobile accident resulting in [474]*474the death of a person. Petitioner set about at once, through his attorney, to malee a transfer of his business, constituting his chief asset, so as to keep from being wiped out by a possible judgment resulting from said death and to the end that his other creditors might not be left with uncollectible debts.
At the outset, he gave a mortgage to himself as executor of his father’s estate to secure an existing indebtedness of $5,-550.03, and this remained of record for something over a year. In the meantime, a $50,000.00 damage suit had been brought against him, and he and his lawyer began considering other plans possibly better adapted to the accomplishment of the stated ends. The lawyer finally advised, and petitioner agreed, that the mortgage should be can-celled, the business conveyed to his father’s estate and by the estate to his wife by way of distribution of the estate’s assets. This plan was put before the heirs of the estate in a letter from petitioner dated October 1, 1940 and all acquiesced in it. It was finally decided by the lawyer, however, that this circuitous procedure would be avoided by a direct conveyance from petitioner to his wife in consideration of $4,000.00. The wife borrowed $4,000.00 from a corporation owned by members of the husband’s family, which was paid to petitioner and used by him in partial liquidation of existing debts.3
On October 14,1940, petitioner executed a deed covering the real estate and a bill of sale covering personal property conveying all of the property and assets of the Blow Pipe Company to his wife, who immediately gave notice to the bank of the transfer with directions that checks be signed by herself, her father, an employee of the business, or her husband. The Collector of Internal Revenue was consulted concerning the tax angles of the transfer. Simultaneously the mortgage originally given the estate was released, the $4,000.00 was received by petitioner from his wife, and a verbal contract was entered into between the husband and wife under which the husband was employed for an undetermined period to manage the business, for which services he was to be paid fifty percent of its net profits. The conveyances were placed of record October 30, 1940. May 14, 1945, the wife published notices under the Florida “Fictitious Name Statute” 4 that she was the party interested in Jacksonville Blow Pipe Company, and June 13, 1945, registered a declaration with the Clerk of the Circuit Court that her interest therein was one hundred percent. Meanwhile, December 4, 1944, judgment for $35,000.00 had been entered against petitioner in the damage suit, which was settled and satisfied in November, 1945 by the payment of $10,-000.00 which was taken largely from the business and charged against petitioner, who reported the loss in his 1945 income tax return.
Following the transfers above mentioned petitioner continued, under his agreement, to manage the business of the Blow Pipe Company, although, beginning as of the time of the transfers, both the wife and her father exercised a greater measure of control than had been attempted before the transfers. Beginning with the year 1942 and continuing through the tax years, U. S. Treasury Forms 1099 were filed with the Commissioner showing the wife as owner of the business and petitioner as an employee together with the amount paid to him during the respective years. The exact extent to which the wife and her father intervened in the management of the business is the subject of dispute. The husband was an engineer and experienced operator of the blow pipe business while the wife had had little or no business experience. We are asked to reverse the action of the Tax Court in sustaining the Commissioner’s determination that all of the income from the business for the two years in question was [475]*475earned by the husband as owner and operator of the business and that none of the income should be ascribed to the wife.
The holding of the Tax Court that the business was not actually and completely transferred to the wife so as to make her the true owner thereof is without support in the evidence. Indeed, a reading of its decision and the Government’s brief indicates that both failed to differentiate between title to property, with all of its incidents, and management of the business to which that property was dedicated by its owner. The decisions of this Court have made that distinction clear, but the Tax Court did not grasp nor apply them.
Our language in Henson v. Commissioner, 5 Cir., 1949, 174 F.2d 846, 847, supplies the answer to the questions before the Tax Court:
“ * * * it is undisputed that after the date of the transfer, which was admittedly a bona fide gift and effective to pass title to the property under Georgia law, that petitioner’s wife was the sole and absolute owner of the Company, with no strings attached. She had the right and absolute power to dispose of it by gift, sale, or will. She further had the power to borrow money on account of the business * * *. Under and by virtue of the gift to his wife, petitioner had irrevocably divested himself of all legal title, right, interest, and control5 over the business, and remained as manager of the company solely at his wife’s pleasure. * * *
“ " * * This case involves a valid and unconditional gift, complete and effectual for all purposes, and is clearly distinguishable from those family partnership tax cases relied upon by the Commissioner. * * *
“The Tax Court has evidently, in its decision, failed to recognize the distinction between actual control over income-producing property with consent of the true owner, and the absolute right of control over both the property and the income derived therefrom which adheres in a valid and legal title. The controlling question in such cases is, therefore, not whether actual control over the property is exercised, but whether the right of control in fact exists; not who earns the income from such property, but who has the right to receive it. * * *
“Every owner of a business, particularly those of limited business experience, has the undoubted right to have it managed by another, even though that person be married to the owner. Moreover, every husband has a legal right to create a valid gift of his property in favor of his wife without being held liable for the income tax thereon, provided, of course, there are no conditions attached which would enable him to retain a legal dominion and control over the property, or to revoke the transfer. * * * Under such circumstances, the income therefrom was taxable to her alone, and not to the petitioner.”
The gift involved in the Henson case was made with no greater formality and was established by no clearer proof than the absolute conveyance of the property here involved. Every test defined [476]*476there is applicable here and is met and satisfied by uncontroverted proof. What we said in Alexander v. Commissioner, 5 Cir., 1951, 190 F.2d 753, further illustrates the error of the Tax Court. There was a case where a son had been vested by parental gift with title to certain cattle with respect to which the father furnished all managerial functions. While the son was away attending school some of the cattle were sold, and the Commissioner essayed to look through the form of the transaction to what he conceived to be the substance and to assess the father with the income upon which the son had paid taxes, and the Tax Court affirmed. We rejected that portion of its opinion, using these words, 190 F.2d 755:
“In reaching its decision, the Tax Court too narrowly interpreted the rule stated in Lucas v. Earl, supra, [281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731] that income is taxable to him who earns it, losing sight of the principle that income may be ‘earned’ not only by individual personal effort, but also by the employment of invested capital, which may be managed by another person for the benefit of the owner. When the parties are acting in good faith, there is no objection inherent in the fact that owner and manager are members of the same family.
“There is a distinction between managerial control over income producing property with the consent of the actual owner, and the absolute right of control over both the property and the income derived therefrom which inheres in a valid legal title. The Tax Court failed to observe that distinction here.”
The same failure characterized the actions of the Tax Court in this case. The record contains no proof that the husband ever exercised any control over the property as such, but his control was of operations only, such as would have been exercised by any other manager whom the wife might have employed. To the same effect as the above cases, see Britt’s Estate v. Commissioner, 5 Cir., 1951, 190 F.2d 946, and Simmons v. Commissioner, 5 Cir., 1947, 164 F.2d 220. And we approved those decisions in Wofford v. Commissioner (and reverse title), 5 Cir., 1953, 207 F.2d 749, 752, using this language: “In a similar situation and upon evidence far less compelling than that presented here, we have recognized and) given effect to income allocations to the* interest in property which created the-income.”
In the case before us the income redetermined by the Commissioner was produced by property consisting of a building, manufacturing machinery, raw materials and business good will, plus management of the operations to which that, property was devoted. The wife owned: the property and was taxable with income flowing from its operation and use. Operational management was furnished: by the husband, who, under agreement, with the wife, was paid an amount equal to fifty percent of the net profits for his. services as manager. This alone was. taxable to him.
The only way the decision of the Tax Court could be sustained would be to hold that title to the property was not vested! in the wife. There was no evidence from-which such a conclusion could be reached. Title was transferred by written instruments duly recorded, the bank was notified of the sale of the business, the public was notified by publication of the change in ownership of the business, and there is nothing in the evidence to support the inference that the written instruments transferring the title were not valid and enforceable according to their terms.
From the time of their execution the wife had the absolute right to encumber, sell, or otherwise alienate the property and to dedicate it to any use she might choose. It was liable for her debts and was not liable for the debts of the husband created after the transfer. The circumstances of the transfer and the fact of the relationship between the [477]*477parties do not, in any way, destroy or weaken the fact of change of ownership.6 All of the disputes in the evidence to which the Tax Court seemed to attribute much weight had to do with facts attending day to day management of the business.7 There is no dispute of the fact that the wife employed the husband to manage the business and that he managed it in the main. Evidence of occasional acts of management control by the wife and her father served to strengthen rather than to weaken the fact of her property rights. There are no facts in evidence which tend to contradict her actual ownership.
The Commissioner redetermined the taxes for the two years involved by disallowing all of the income from the business claimed by the wife, on which she paid taxes, and by assessing the entire income to the husband. This redetermi-nation was based solely upon the rejection in toto of the fact of transfer of ownership of the property. The Petition for Review brings before us the legality of what the Commissioner did, and the pleadings frame that as the sole issue we are called upon to determine.8 For the [478]*478reasons here stated, the decision and judgment of the Tax Court are reversed and the cause is remanded for proceedings in conformity with this opinion.
Reversed.