Wattley v. Commissioner , 20 T.C.M. 111 ( 1961 )

Ralph B. Wattley and Josephine R. Wattley v. Commissioner.

Wattley v. Commissioner

Docket No. 62297.

United States Tax Court

T.C. Memo 1961-24; 1961 Tax Ct. Memo LEXIS 320; 20 T.C.M. 111; T.C.M. (RIA) 61024;

January 31, 1961

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Ralph B. Wattley, pro se, 141-48 85th Road, Kew Gardens, New York, N. Y. Clarence P. Brazill, Jr., Esq., for the respondent.

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RAUM

Memorandum Opinion

RAUM, Judge: This case is here on remand from the Court of Appeals for the Second Circuit (275 F.2d 461), which reviewed our prior decision herein (31 T.C. 510">31 T.C. 510). The issue was whether the taxpayer was entitled to spread a commission of $30,666.67, received early in 1951, over a period of some 19 years pursuant to Section 107(a) of the Internal Revenue Code of 1939. The question turned upon whether the taxpayer was to be treated as an employee of his wholly-owned corporation or whether that corporation was to be regarded merely as a "front" or "token" and its existence ignored. We held that the corporate existence could not be ignored, ">*321 and the Court of Appeals approved our decision in this respect. However, it concluded from the record that the corporation was dormant from 1944 to 1951 and that the taxpayer was not its employee during that period. Accordingly, it remanded the case for findings as to what part of the $30,666.67 commission was allocable to services performed by the taxpayer during that period. Pursuant to the remand the remainder of the commission would still not be entitled to the benefits of Section 107. Petitioners sought review of the decision of the Court of Appeals in the Supreme Court, but their petition for certiorari was denied, 364 U.S. 864">364 U.S. 864.

The question of allocating the commission which is now before us on the remand was not raised at the original trial of this case and the Court therefore had no occasion to consider it at that time. Nevertheless, we are required to make that allocation now by reason of the order of remand. Neither party has requested the opportunity of presenting further evidence. A document filed by the petitioners stated that the Tax Court has "all the information needed * * * in order to decide the matter", and respondent's representative expressly stated">*322 that respondent did not desire to present any additional evidence. An allocation suggested by respondent appears to us to be reasonable on all the evidence, and indeed somewhat shaded in petitioners' favor. We accept it as correct, and, accordingly, on the basis of evidence already in the record, we hereby find as a fact that of the $30,666.67 commission received by petitioner Ralph B. Wattley early in 1951, $10,869.18 was allocable to services performed by him beginning in 1944 up to the time of receipt; the remainder of the commission was allocable to services rendered by him prior thereto as an employee of his wholly-owned corporation.

Decision will be entered in accordance with the foregoing opinion.