Lidov v. Commissioner , 16 B.T.A. 1421 ( 1929 )

SAMUEL J. LIDOV, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

MRS. GLADYS R. LIDOV, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Lidov v. Commissioner

Docket Nos. 36022, 36023.

United States Board of Tax Appeals

16 B.T.A. 1421; 1929 BTA LEXIS 2378;

July 25, 1929, Promulgated

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An instrument executed by petitioners, giving their two sons each a one-fourth beneficial interest in a business operated by petitioners, held not to create a partnership or render the income nontaxable to the petitioners.

J. G. Korner, Jr., Esq., and Maurice T. Weinshenk, Esq., for the petitioners.

C. H. Curl, Esq., for the respondent.

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SIEFKIN

These proceedings were consolidated for hearing and decision. Docket No. 36022 is an appeal from deficiencies of $822.53 and $319.22 asserted against Samuel J. Lidov for the years 1923 and 1924 respectively. Docket No. 36023 involves deficiencies of $870.53, $377.23, and $250.82 asserted against his wife, Gladys R. Lidov, for the years 1923, 1924, and 1925. The sole error alleged is respondent's failure to recognize that 25 per cent of the income from a business operated by petitioners belonged to each of them and their two children by virtue of a partnership and trust agreement previously entered into. Respondent recognized such agreement created a partnership between petitioners but treated the whole of the income as divisible equally between them.

FINDINGS OF FACT.

Petitioners are husband and wife residing at Chicago, Ill., where they operate a store known as The Everett.

Petitioners were married in November of 1912. The Everett Store was started in October of 1916 after the failure of a prior venture. The capital invested in The Everett Store was $1,000, consisting of $300 belonging to Lidov and $700 borrowed by his wife from her sister. Mrs. Lidov had no money at the time of her marriage. The borrowed money was paid back out of the business. She gave a great deal of time and attention to the store at all times when she was physically able to do so.

In February of 1919 a close friend of Mrs. Lidov died and in about a year the husband had remarried and the money which her friend had helped to accumulate was expended in sending the second wife's son to college while the children of her deceased friend were neglected. Mrs. Lidov was impressed with such behavior in the case of her friend and determined to take steps to prevent her children being neglected in event of her death. She talked the matter over with Mr. Lidov and they agreed to enter into an arrangement which would serve to take care of their children out of the store. They had two sons, Everett and Arthur, who were born in 1913 and 1917, respectively.

On December, 1921, the petitioners executed a written document which bears the title "Samuel J. Lidov and Gladys R. Lidov, Trust Agreement," and reads as follows:

Articles of Co-partnership made this thirty-first day of December, 1921, by and between Samuel J. Lidov and Gladys R. Lidov, both of the city of Chicago, County of Cook, State of Illinois.

It is hereby mutually understood and agreed that for the purpose of providing an income and for the purpose of maintenance and education of the partner's two children, namely, Rex Everett and Arthur H. Lidov, to that end and for these objects and purposes, the parties hereto effectually consummate as is their desire to do, a co-partnership of equal interest between Samuel J. Lidov, Gladys R. Lidov, Rex Everett and Arthur H. Lidov, as will more specifically be described hereinafter.

That to effectuate this agreement the recpective parties agree to act as guardians and trustees of any and all interest of the said Rex Everett and Arthur H. Lidov. That the said parties shall pay on behalf of the said beneficiaries any and all taxes due to the city of Chicago, County of Cook, State of Illinois, and to the United States of America.

That the said trust estate shall continue in full force and effect from January 1, 1922, thereafter, until the said youngest beneficiary shall attain the age of twenty four years.

(1) The partnership shall be carried on under the firm name and style of EVERETT DRY GOODS STORE.

(2) The said co-partners agree to become and remain partners in the said dry goods business from this day until May 1st, 1930.

(3) The death of any partner shall not dissolve the partnership so far as the remaining partner is concerned, or shall it in any way effect the partnership interest of the minors or beneficiaries.

(4) The principal place of business of said partnership shall be at 2301-3-5-7 West Madison Street in the City of Chicago, or at such other place or places as the partners may from time to time designate.

(5) The capital of said partnership shall be the entire assets of the copartners now contributed by the said partners in equal shares, or in such other shares as may from time to time be agreed upon by the parties hereto and made a part of these articles.

(6) If, at any time hereafter, it is necessary to have more capital for the carrying on of said business, additional capital shall be furnished by the partners in equal shares.

(7) All moneys which shall be received from time to time for, or, on account of said partnership, not required for current expenses shall be paid immediately into the bank or depository, and all disbursements on the account of said partnership shall be made by check against the account of said partnership in such bank or depository.

(8) It is hereby mutually agreed that said Samuel J. Lidov, Gladys R. Lidov, Rex Everett and Arthur H. Lidov, shall be entitled to the net profits of the business in equal shares and that said profits shall be divided as soon after the end of each year as the general account shall have been taken. All losses happening in the course of said business shall be borne in the same proportion as the profits are shared, unless the same shall happen through the wilful neglect or the fault of any partner or partners, and in that case the loss shall be chargeable to his or their respective capital investment.

(9) The said partners agree to bear, pay and discharge equally between them any and all other expenses which may be required for the carrying on or managing of said business; and any and all gains, profits, and increase growing out of said business shall be divided as hereinbefore provided, likewise losses.

(10) It is agreed by and between the parties hereto, that at all times during the continuance of said partnership each and all of them will devote their entire time and attention to said business and that they will exert their utmost skill and power for their joint interests, profits, benefit and advantage.

(11) It is hereby mutually agreed that Samuel J. Lidov shall hire help for the purpose of carrying on said business without the consultation and advice of the other partners. No one else shall dismiss or discharge any person in the employment of said firm, except the said Samuel J. Lidov, except in his absence from the city, the said Gladys R. Lidov may act.

(12) Neither partner shall, without the consent of the other partner, draw, accept or sign any check, bill of exchange, promissory note or contract any debt pledging the credit of the firm or employ any of the money or effects thereof, except in the usual and regular course of business.

(13) If occasion shall arise requiring the signing of any bonds, promissory note, bill of exchange, or other securities, for the payment of money on account of the said partnership, except when the giving of such obligation shall in the common course of business be unavoidable, the same shall be signed by the said Samuel J. Lidov or Gladys R. Lidov. If any partner shall sign such obligation except in the case beforesaid, the same shall be deemed to be given on his separate account and he shall be held responsible and shall indemnify the other partners against payment thereof.

(14) The Foreman Brothers Trust Company shall be the bankers of said firm, unless during said time another bank is agreed upon by the partners for the best interest of said firm. All partnership money not required for current expenses shall be paid into the account at said bank. Each partner shall have the right to draw on said account, but only for the purpose of the partnership.

(15) No partner shall buy, sell or enter into any contract for the purchase or sale of goods, or articles to the value of $10,000 or more without the previous consent in writing of the other partners or guardians.

(16) No partner shall lend any money or give credit to, or have dealings on behalf of the partnership with any person, partnership or corporation, with whom the other partners shall have forbidden him to deal. If he shall act contrary to this provision he shall repay the firm for any loss which may have been incurred by reason thereof.

(17) It is further agreed that during the continuance of said term, neither of said partners shall endorse any note or otherwise become surety for any person or persons, whomsoever, without the consent of the other partners or guardians.

(18) No partner shall do or suffer anything to be done whereby the stock in trade, capital, or property of the partnership may be attached or taken in execution.

(19) Each partner shall punctually discharge all of his individual debts or engagements and shall at all times keep the other partners to the property of the partnership indemnified against the same and all actions, proceedings, claims, and demands in respect thereof.

(20) Upon the death of either partner the survivor or survivors shall be entitled to the benefit of survivorship and shall be entitled to a pro rata amount of the interest of the deceased partner or beneficiary.

(21) It is hereby mutually agreed by and between the parties hereto that upon the attainment of majority by the said Rex Everett and Arthur H. Lidov, each or both of them may become active in the management of said partnership business in the same ratio of interest as he or they may have at the time of the attainment of his or their majority.

(22) It is further agreed by and between said partners that a full, true and complete books of account shall be kept during the continuance of said term wherein shall be entered all moneys received and paid out or expended in conjunction with said business, as well as the goods, wares, and merchandise bought or sold by them; and all such other matters and things that may touch upon the business management thereof. Said books shall be kept by a bookkeeper and audited at least once a year by a duly recognized accountant and any partner may have access to them at any time. That during the month of January of each year, a general account shall be taken of the assets and liabilities of this partnership, all of the dealings and transactions of the same during the preceding year and all of the matters and things usually comprehended in accounts of a like nature; and in taking such account a just valuation shall be made of all items requiring valuation.

(23) It is hereby agreed that in case it shall appear to said partners, or a majority of them, that at any time hereafter this agreement or anything herein contained, is in any way deficient or defective, or does not express clearly the rights of the parties, or that changes or additions should be advised by the counsel of the several partners, then in such cases said partners shall enter into, execute, perfect such further instrument and papers as their counsel may advise and the same shall become retroactive as of the date of execution hereof.

(24) If any difference shall arise between the parties hereto as to their rights and liabilities hereunder or under any instrument to be hereafter made for the purpose of carrying this instrument into effect, such difference shall be determined and settled by counsel, and his decision shall be final as to any matters that may arise concerning the interpretation of this instrument at the terms thereof, or the proper mode of carrying the same into effect.

(25) That it is hereby mutually agreed and understood as hereinbefore provided that the said partners hereto agree to act as trustees for the said Rex Everett Lidov, and Arthur H. Lidov, who are hereby given an equal interest in said partnership, namely one-fourth interest to Samuel J. Lidov, one-fourth interest to Gladys R. Lidov, one-fourth interest to Rex Everett Lidov, and one-fourth interest to Arthur H. Lidov, the latter two in trust, and the said trustees or guardians agree to hold and account for the partnership interest of the minors.

In witness whereof the parties hereunto subscribe their hands and seals this thirty-first day of December, 1921.

(Signed) SAMUEL J. LIDOV.

GLADYS R. LIDOV.

The business assets at the time of such agreement were carried in the name of the store. The books were thereafter kept the same as before except that an account was entered therein for each of petitioners and the children and one-fourth of the annual net profits was entered into each such account. Subsequent to the execution of the above instrument, and during all the years in controversy, petitioners separately returned one-fourth of the store income and the remainder was separately returned in behalf of the two sons under the signature of Samuel J. Lidov as trustee.

OPINION.

SIEFKIN: The petitioners contend that the instrument set forth in our findings of fact created a partnership consisting of themselves and their two children.

At 30 Cyc. 349 there is this statement with regard to partnerships:

The definition of a partnership which seems to be most accurate and comprehensive is that of Chancellor Kent, as follows: "A contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.

At page 357 of the same volume it is stated:

The mutual assent, required of parties to every enforceable contract, is necessary to the formation of a partnership. * * *

The above quotations are amply supported by authority.

The children were of tender years at the time the instrument in question was executed and were not parties to it. They were too young to be competent parties to a contract of partnership, one being eight and the other four. We are forced to the conclusion that no partnership existed.

The cases cited by the petitioners are distinguishable from the instant case in that in those cases the agreements were entered into by all of the parties alleged to be partners. We turn then to a consideration of whether the instrument in question created a trust in favor of the children.

At 39 Cyc. 57 there is this statement:

While it is essential to the creation of a trust that there be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, no formal, technical, or particular words are necessary, but it is sufficient if an intention to create a trust and the subject-matter, purpose, and beneficiary are stated with reasonable certainty.

The above quotation is amply supported by authority.

It is our view of the instrument (and this view is reinforced by the testimony of the petitioners and the nature of the business conducted by them), that it was no more than an attempted assignment of future income. The children were of tender years and did not and could not contribute services of value during the years in question. No profits could be distributed until earned, and, since we have held that the petitioners were the only partners, those profits when earned, inured to them, and them only. That they agreed to hold a portion for the children does not constitute such portion nontaxable to the petitioners. The situation is similar to that considered in , and ; ; . We conclude that the respondent's action was proper.

Judgment will be entered for the respondent.