Schoen v. Commissioner , 13 B.T.A. 857 ( 1928 )

OPINION.

Siefkin:

The petitioner contends that Florence H. Schoen, the wife of Isaac A. Schoen, owned a one-fourth interest in the partnership in 1920, being one-half of Isaac A. Schoen’s interest, and that she owned a one-third interest in 1921, 1922, and 1923, in place of her husband. The respondent contends, and has determined the deficiencies herein upon the theory, that Florence H. Schoen did not have any interest in the firm in any of the years, and that Isaac A. Schoen was taxable in 1920 with one-half the distributive earnings and in the three following years with one-third. We are satisfied that the respondent’s action was correct.

The documentary evidence, without exception but for the affidavit made after Schoen’s death- — which may be explained as made to avoid the necessity of administration of the partnership estate, is in accord with the respondent’s determination. The testimony of the witnesses as to oral understandings is not convincing as to the existence of a partnership in fact different in interest from that shown by the records of the partnership. Such understandings as may have existed, in view of the uncertain nature, are as consistent with a theory of assignment after receipt as with a theory of actual severance of a partnership interest. See Hellman v. United States (Ct. Cls., decided May 2, 1921); Bing v. Bowers, 22 Fed. (2d) 450; Charles F. Colbert, Jr., 12 B. T. A. 565, and cases cited.

Jvdgment will be entended for the respondent.