DocketNumber： Docket No. 78336.
Citation Numbers： 1937 BTA LEXIS 845, 35 B.T.A. 692
Judges： Haeron
Filed Date： 3/18/1937
Status： Precedential
Modified Date： 1/12/2023
*845 Petitioner was retained by 10 municipalities of New Jersey to give legal advice to and take care of legal matters referred to him by the governing councils. His compensation in each instance was a nominal annual retainer and fees for services rendered. Although his appointment was in each case authorized by statutes which in every case except two provided for an office of township or borough attorney, neither the statutes nor local ordinances prescribed his duties or fixed his compensation. The services were rendered in fact under an oral agreement to advise the municipal councils and prepare matters referred to him and the services were intermittent rather than continuous. Petitioner maintained a law office and carried on concurrently a general law practice which took a major part of his time.
*692 This proceeding involves a deficiency in income tax*846 for the year 1932 in the amount of $1,475.33. The sole issue is whether the compensation received by the petitioner from 10 boroughs and townships in the State of New Jersey is exempt from Federal taxation under the implied constitutional immunity of instrumentalities of state governments. The petitioner has abandoned his claim that compensation received from two school districts is exempt under the same immunity.
FINDINGS OF FACT.
A stipulation of facts has been filed, which is summarized and included in the following findings of fact:
*693 The petitioner is an attorney at law practicing in Toms River, New Jersey. In the year 1932 and in some cases for several years prior thereto, he served as attorney for two townships and eight boroughs, all located in Ocean County, New Jersey. In 1932 he received from the 10 municipalities a total of $4,973.26 in payment of retainers and fees for special services rendered in 1932 and in some cases in 1930 and 1931 also, and the respondent added this total along with other items to the petitioner's taxable income for 1932. The amounts received from the various townships are indicated in the following table, which is taken from*847 the stipulation:
| Name of municipality | Retainers received | Total of fees and |
| in 1932 | retainers received in 1932 | |
| Township of Long Beach | $100 | $2,604.10 |
| Township of Eagleswood | 50 | 1 49.75 |
| Borough of Beach Haven | 100 | 222.15 |
| Borough of Surf City | 50 | 224.30 |
| Borough of Tuckerton | 100 | 222.78 |
| Borough of Point Pleasant | 100 | 490.40 |
| Borough of Pine Beach | $100 | $303.80 |
| Borough of South Toms River | 50 | 75.20 |
| Borough of Harvey Cedars | 50 | 515.78 |
| Borough of Beachwood | 50 | 265.00 |
| 750 | 4,973.26 |
In every case of every municipality the petitioner was engaged by the respective governing bodies to look after legal matters they would refer to him and for which he received compensation in 1932. In every case except two petitioner was retained for a one-year period; in one case, for four years; in another, no fixed period was indicated.
The petitioner was appointed township attorney of the townships of Long Beach and Eagleswood by resolution of the respective township committees under the authority of "A General Act Concerning Townships" (Revision of 1899, as amended; C.S, of N.J., vol. 4, pp. 5571, 5572, secs. 4-8). In*848 section 5 of that act the township attorney is designated as one of the appointive officers which a township committee may "employ or appoint", and it is provided that the township attorney need not be a resident of the township. Section 6, together with section 4, specifies the term of office for appointive officers to be one year. Section 7 prescribes an oath of office and section 8 provides that on failure to subscribe to this oath an office shall be considered vacant.
Petitioner was appointed borough attorney of the boroughs of Beach Haven, Surf City, Tuckerton, Point Pleasant, Pine Beach, and South Toms River under the authority of "A General Act Relating to Boroughs" (Revision of 1897, as amended; C.S. of N.J., vol. 1, pp. 229, 231, secs. 3 and 8; Cum. Supp. (1911-1924) to C.S. of N.J., vol. 1, p. 168, secs. 24-3). Section 3 of that act designates the *694 borough attorney as one of the officers who may be appointed by the borough council, and provides that it shall not be necessary for him to be a resident of the borough; his term is fixed at one year unless sooner removed for cause. Section 8 prescribes an oath for all officers and provides that upon failure of*849 any officer to file such an oath with the borough clerk within 30 days after commencement of the term of office the office shall be deemed to be vacant.
Petitioner was appointed borough attorney of the boroughs of Harvey Cedars and Beachwood, which were governed by a New Jersey act providing the commission form of government for boroughs adopting the act (Cum. Supp. (1911-1924) to C.S. of N.J., vol. 2, p. 2461, sec. * * * 136-8; Cum. Supp. (1925-1930) to C.S. of N.J., p. 1270, sec. * * * 136-8). Under section 4 of that act the board of commissioners was empowered to create such subordinate boards and appoint such officers as it might deem necessary, to fix the duties and compensation of all officers and employees, and to remove any officer or employee for cause after hearing.
Before any appointment was made by a municipality the rate of fees in general and the retainers to be received by the petitioner were fixed by oral agreements with the officials of the several boroughs and townships except in the case of the township of Eagleswood, where the retainer was fixed by the resolution of appointment. In the case of each township or borough the petitioner had oral agreements with*850 the municipal officials as to what services the retainer should cover; generally it covered consultations held in the petitioner's own office, correspondence concerning municipal affairs, and advice rendered to municipal officials by telephone or letter. The petitioner had oral agreements with the officials of the various municipalities that additional services should be compensated for on the basis of their character and the amount of time required for their performance. These additional services included in general attendance at meetings of the governing bodies of the municipalities; preparation of contracts, notes and ordinances; services incident to the authorization, issuance and sale of bonds, and representation of the municipalities in litigation and tax appeals before state and county tax boards. Some examples of the services he performed are as follows: Preparation of ordinances relating to zoning, sanitary regulations, appointment of boards, traffic regulations, dogs, dance halls, bathing beaches, processions and parades; notices of passage of ordinances and publication of same; notices of foreclosure sales of property for failure to pay taxes; legal instruments relating*851 to levying of assessments for municipal improvements; various kinds of notes, tax title notes, tax revenue notes, emergency notes, sidewalk notes; preparation of tax sale lists; and attendance at tax sales.
*695 Petitioner received $2,604.40 in 1932 from the town on Long Beach. Of this amount $2,380 was payment for services in connection with handling one tax foreclosure proceeding. Fifteen appeals were taken by the taxpayer to the New Jersey Court of Errors and Appeals; petitioner took care of this entire litigation and charged fees therefor. For such services petitioner rendered bills in such amounts as he thought reasonable and in every instance they were approved and paid by the governing body of the municipality.
The petitioner did all of the regular work required by the municipalities listed, and no other attorney was employed by any of them. The governing bodies of the municipalities were generally not lawyers, but townsmen inexperienced in the legal aspects of municipal government. The petitioner was familiar with the New Jersey statutes governing municipalities and advised the municipal officers as to their powers, duties, and the requirements of the statutes. *852 He never began any legal work for the municipalities on his own initiative, but acted only when called upon by officers of the municipalities. They usually informed him of a desired object and he proceeded to obtain the detailed information and draw up the necessary legal instruments, i. e., ordinances, contracts, resolutions, relying entirely on his own professional skill.
The petitioner's work for the municipalities was conducted from his private law office with the use of his own legal and clerical employees. None of the municipalities furnished him with offices or contributed to his office expenses.
Concurrently with his work for the above municipalities the petitioner was engaged in the private practice of law. He devoted approximately 20 percent of his working hours to his services for all the municipalities. He was regularly subject to call at any time by the governing bodies or officials of the municipalities and was subject to such demands as they might find it necessary to make upon him in connection with the conduct of municipal affairs.
Petitioner did not execute an oath of office under any of the appointments.
Petitioner was not an officer or employee*853 of any of the municipalities.
OPINION.
HARRON: The issue in this proceeding involves determining the relationship of the petitioner to 10 municipalities in New Jersey from which he received compensation in 1932 for services rendered in that year and prior years. Petitioner claims that he was an officer of each municipality. It is not entirely clear whether petitioner also rests his claim on the contertion that he was an employee, but also rests his claim on the contention that he was an employee, but *696 consideration will be given to this possibility. There is also some reliance upon the argument that to tax this petitioner's income from various municipalities will result in imposing a burden upon local governments of the state contrary to the constitutional immunity of the instrumentalities of state government from Federal taxation. Respondent concedes that the services performed by the petitioner for the municipalities were in the exercise of essential governmental functions, but contends that petitioner was an independent contractor.
Petitioner was appointed township and borough attorney for 10 municipalities for one-year periods, excepting in one instance*854 where he was appointed for four years. In this latter instance, because of the presence of other factors, this appointment for a longer period does not serve to distinguish it from any of the others. Examination of the provisions of the pertinent statutes of New Jersey which govern the townships and boroughs involved shows that these municipalities were authorized under permissive statutory provisions to employ or appoint attorneys and the language of these provisions provides in terms for the "appointive office" of township or borough attorney. It is evident in the statutes that, if a local government elects to exercise its right to fill such appointive office, the appointive officer is required to execute and file an oath of office. Failure to file an oath of office under the provisions of the statute results in the office becoming vacant. C.S. of N.J., vol. 4, p. 5572, secs. 5, 7, and 8; C.S. of N.J., vol. 1, p. 231, sec. 8. These statutes do not prescribe the duties of the township or borough attorney, nor do they fix the salary or compensation to be paid, but leave these matters for the action of the municipal government concerned. There is no evidence before us that the*855 municipalities involved here difined the duties of the office which petitioner claims to have occupied, and upon the evidence it is clear that compensation was not fixed either. From the above, it appears that petitioner's appointment was authorized by statute, but it is not clear that the municipalities appointed petitioner to an office so as to make him an officer whose compensation would be exempt from Federal taxation under constitutional immunity.
The question of whether an individual is an officer of a state instrumentality of government is not answered by the fact that he was given a title of officer. It is necessary to consider the real relation of the individual to the government agency and the nature of his activities. . It must also be kept in mind that issues such as the one before us here require consideration of whether the relation of the individual to an instrumentality of state government is plainly within the realm of a doctrine placing restrictions on the taxing powers of both State and Federal Governments so as to protect the independence of these governments *697 within their respective spheres*856 under our constitutional system. In numerous appeals of this kind the petitioner has rested his claim that he was an officer of a political subdivision of state upon the fact that he was retained to perform services under the title of an officer, or because there was some reference in pertinent statutes to the existence of an office which he claimed to occupy. Without referring to these cases at this time it is pointed out that in every instance the issue has been determined by resorting to facts showing claimant's real relationship to the governmental agency involved and the nature of his duties.
It is inherent in the meaning of the term "officer" that the relationship must be official; that the duties must be prescribed by law and that the nature of the work is the execution of official duties. The requirement of an oath of office is primarily to execute a pledge that the individual will faithfully execute his duties as an officer. Usually the compensation is fixed and the duties are continuous and occupy a major portion of the individual's time. The essential characteristics of a public office have been set forth in *857 , and they have been quoted so frequently that specific quotation will be omitted here. This petitioner does not meet the requirements of an officer so as to be exempt from Federal taxation within the requirements of
Petitioner was known to be experienced and competent in matters relating to the municipal laws of the State of New Jersey and his advice and services were very helpful to the municipal bodies governing these towns, for their membership was made up chiefly of townsmen unacquainted with the requirements of municipal law in relation to their official duties. Petitioner gave them general advice and when they referred matters to him they stated the general object which the municipality wished to achieve and petitioner applied his knowledge of municipal law in preparation of ordinances, resolutions, notes, *858 bonds, and other instruments and gave his recommendations for their proper enactment of execution. He also took care of litigation referred to him; in one instance a single tax foreclosure proceeding for which he was paid over $2,000, the largest payment from any municipality. The relationship of attorney and client clearly appears in this instance.
With respect to compensation, petitioner testified in this proceeding that he was never appointed attorney for a borough or township without a verbal understanding in advance with an official of the local government as to what retainer he would require and the rate of *698 fees generally that he would charge for his services. After such understanding was arrived at by conference with an official, the local governing body then appointed him attorney in accordance with such understanding. Petitioner maintained his own law office and performed all the work for these municipalities from his office and during the period of all of his services for these municipalities he carried on concurrently a private law practice which occupied 80 percent of his time. He submitted bills to the municipalities setting forth his fees for various*859 services and these charges, which he fixed himself, were paid without question.
Further, it is not consistent with the essential meaning of the term "officer" that one person can be an officer of a number of local governments. The weight of the argument that an individual is an officer of a local government diminishes in proportion to the number of municipalities served, under such facts as are present here. It is difficult to believe that the question of removal from "office" could ever arise under the state of facts surrounding petitioner's various engagements. In the most extreme case the worst that could happen would be that no matters would be referred to petitioner from the municipality. It has been noted that two of the boroughs involved, having a commission form of government, are not governed by the statutes referring to the borough attorney as an officer, so that petitioner's claim to be an officer in these two instances has even less weight than in the others. It has also been noted that in the case of ; *860 , it was held that in
Under all these circumstances we find that petitioner's relationship to the municipalities was that of attorney and client and that there was no real official relationship except in name.
Petitioner has advanced the argument that his work was in the exercise of essential governmental functions of the municipalities he served and that to tax his compensation would impose a burden upon these municipalities in exercising their sovereign rights and duties. In an appeal to justice, it has been argued that a seashore hamlet is as much entitled to protection from such burdens as a large city. This argument begs the question for it assumes that denial of the claimed exemption to this petitioner would result in denying the constitutional immunity to officers of small*861 municipalities. Holding as we do that petitioner was not an officer of the *699 various municipalities, the argument has no bearing on determination of the issue here. We are not convinced by anything in the record, or by anything of which we can take judicial notice, that the imposition of the Federal income tax on this petitioner's compensation from the various municipalities would impair in any substantial manner the petitioner's ability to discharge his obligations to any political subdivisions or their ability to procure legal services or to exercise their sovereign functions.
It has already been indicated that we are not convinced that these municipalities filled the "office" of a township attorney or that the relationship was official. Giving further consideration to the nature of petitioner's work for the municipalities, we have reviewed several court decisions where it was held that because the plaintiffs had performed services to local governmental agencies in the exercise of governmental functions they were in effect instrumentalities of local government and their compensation was immune under the constitutional protection. See *862 ; ; . However, the Supreme Court, in , reversed the decision of the Circuit Court in
*700 Decisions of this Board and of the courts which have denied immunity from Federal taxation to those claiming to be officers or employees*864 of political subdivisions of a state are too numerous to summarize, but the following are referred to as authority for our conclusion here that petitioner is not immune from taxation: ; affd., ; ; ; affd., ; ; ; ; ; ; ;
Exemption has been granted to attorneys claiming to be officers or employees of a state or political subdivision thereof in the following decisions, under circumstances showing that the petitioner met the requirements of an officer as set forth in The duties of the officer were prescribed by law and the compensation was fixed. ; ; ; affd., .
Petitioner makes some claim to being an employee of the various municipalities, in the alternative. We are unable to sustain this contention for the record does not disclose facts to show the necessary continuity of service and control over his work by the governing bodies of the municipalities so as to bring petitioner within the status of an employee, as set forth in
It is held that the petitioner was not an officer of the 10 municipalities of New Jersey, but that he was an independent contractor under circumstances which show that the relationship of attorney and client existed.
1. Discrepancy unexplained. ↩