Colbert v. Commissioner

CHARLES F. COLBERT JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Colbert v. Commissioner

Docket No. 11629.

United States Board of Tax Appeals

12 B.T.A. 565; 1928 BTA LEXIS 3509;

On June 13, 1928, Promulgated

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Instrument construed and held to be an assignment of profits to be earned; the assignor and not the assignee being taxable thereon as earned.

George D. Wick, Esq., and W. A. Seifert, Esq., for the petitioner. Clark T. Brown, Esq., for the respondent.

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SIEFKIN

This is a proceeding for the redetermination of a deficiency in income tax for the year 1920 of $27,948.11. The only issue is whether certain income of a partnership was taxable income to the petitioner or to his wife, Marie Louise Colbert.

FINDINGS OF FACT.

In 1919 the petitioner and two others each owned a one-third interest in the United States Fuel Co., a partnership, duly registered under the statutes of Pennsylvania as doing business under a fictitious name. Marie Louise Colbert, the wife of the petitioner, during 1919 and for some time prior thereto, had insisted that she should be given some income of her own. The petitioner consulted his counsel for the purpose of having papers drawn to convey his one-third interest in the partnership to his wife. Counsel advised that he did not think the partnership should be dissolved and a new partnership created, but that a paper could be drawn which had the same effect as though she were a partner. The following instrument was executed on December 23, 1919:

Whereas, George Whyel, of Uniontown, Fayette County, Pennsylvania, John Husband, of Mount Pleasant, Westmoreland County, State aforesaid, and Charles F. Colbert, jr., of Pittsburgh, Allegheny County, State aforesaid, and Certificate duly executed and acknowledged June 18, 1919, under and pursuant to the provisions of the Act of June 28, 1917, P.L. 645, established a partnership under the fictitious name of UNITED STATES FUEL COMPANY to carry on the business of mining, preparing, coking, washing, shipping, and selling coal and products of coal, and buying selling, mining and quarrying stone, lime, sand, gravel and other building materials, said business to be carried on at mine near Gray's landing, Fayette County, Pennsylvania, and having another office at No. 501 Union Trust Building, Uniontown, Fayette County, Pennsylvania, which said Certificate was duly filed in the offices of the Prothonotaries of Fayette and Allegheny Counties and in the office of the Secretary of the Commonwealth of Harrisburg, Pennsylvania;

AND WHEREAS, the said George Whyel, John Husband, and Charles F. Colbert, jr., in connection with the said proposed business acquired title in undivided equal proportions to those two certain tracts of land situate near Gray's Landing in Nicholson Township, Fayette County, Pennsylvania, the first containing 91 acres, 123 perches, more or less, subject to reservation of the Nine Foot or Pittsburgh Vein of coal, together with mining rights and privileges appurtenant thereto, the second containing 66.221 acres, more or less, excepting and reserving the said Nine Foot or Pittsburgh Vein of coal, together with mining rights and privileges appurtenant thereto, &c; both said tracts being fully described in deeds of conveyance of record to the said parties, of which said premises they are owners as tenants in common in equal proportions;

AND WHEREAS, the said George Whyel, John Husband, and Charles F. Colbert, jr., partners doing business as aforesaid under the firm name of the UNITED STATES FUEL COMPANY, have developed and are operating on the said premises coal other than the said Nine Foot or Pittsburgh Vein of coal and are mining, shipping and marketing the same;

AND WHEREAS, the said Charles F. Colbert, jr., is practically free of debt and is the owner of property, real and personal, free and clear of liens and encumbrances, in value worth many times the amount of all his outstanding debts and liabilities over and above all his interest, immediate and prospective, in the said partnership, and the said Charles F. Colbert, jr., is desirous of having his share of any and all profits derived from the operation of the said partnership to be for the sole and separate use of his wife, Marie Louise Colbert;

AND WHEREAS, the said George Whyel, John Husband, and Charles F. Colbert, jr., are desirous of having and agree that the partnership aforesaid continue the same as heretofore, and the purpose hereof is in no wise to affect or disturb the said partnership nor its property nor holdings, nor the duties, liabilities and obligations of the members of the said partnership, and is only to operate on the profits thereof that may be payable on account of the share of the said Charles F. Colbert, jr.;

NOW, THEREFORE, THESE PRESENTS WITNESSETH, That for and in consideration of the sum of One Dollar and other good and valuable consideration me thereunto moving, receipt whereof is hereby acknowledged, I, the said Charles F. Colbert, jr., hereby assign, transfer and set over to my said wife, Marie Louise Colbert, all my right, title, interest, property, claim and demand whatsoever of, in, to and out of all of the profits henceforth hereafter to accrue, from and after January 1, 1920, on my one-third interest of and in the said partnership of UNITED STATES FUEL COMPANY, the same to be the sole and separate income of my said wife; that this assignment shall and is intended to take effect as of, from and after January 1st, 1920, and shall continue for a period of three years from the last named date; all payments of dividends on account of profits on the said one-third interest in the said partnership shall be paid to and be received and receipted for by me and I shall pay and account for the same to the said Marie Louise Colbert at such times and in such manner as may be mutually agreed upon between us.

IN WITNESS WHEREOF I have hereunto set my hand and seal this 23rd day of December, A.D. 1919.

CHAS. F. COLBERT, Jr. %(seal.)/

Witnesses:

J. T. MICHEM, M. HAUGHTON.

After the execution of the instrument the other two partners were advised of it. Income-tax returns filed by the partnership in 1920, 1921, and 1922 showed Marie Louise Colbert as one of the three partners. During 1920 the partnership earned profits of $158,196.68. The petitioner did not report $52,732.23 as taxable income from said partnership but said sum was reported as income by Marie Louise Colbert and tax paid thereon. No part of said sum was received by Marie Louise Colbert during 1920, but in 1921 the petitioner gave her a demand note for said sum. In December, 1922, the petitioner gave his wife his check for $10,000 and in September, 1923, he bought a farm in her name for a consideration of $47,759. Thereafter, the demand note was returned to the petitioner.

Marie Louise Colbert, after the execution of the instrument set out above, did not supplant her husband as a manager of the partnership affairs. The petitioner, during the year 1920 and subsequent years, continued to perform the same duties as in prior years.

OPINION.

SIEFKIN: The issue is whether the petitioner or his wife is taxable on one-third of the income of a partnership in 1920. The petitioner insists that the case of ; ; , does not apply and says that the petitioner received the income from the partnership as a trustee for his wife and refers to our decisions in ; , and to , decided January 21, 1928, by the United States District Court for the District of Connecticut. He also refers to the Uniform Partnership Act as adopted in Pennsylvania, the sections relied upon being as follows:

A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other, in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive, in accordance with his contract, the profits to which the assigning partner would otherwise be entitled. (Act of March 26, 1915, P.L. 18, paragraph 5, section 27, subsection (1).)

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A partner's interest in the partnership is his share of the profits and surplus, and the same is personal property. (Act of March 26, 1915, P.L. 18, Section 26.)

Reliance is also placed upon the case of Hellman v.United States, (Court of Claims, decided July 25, 1927), in which weight is given to the segregation of partnership income as shown upon the sworn partnership return, and it is argued that in this proceeding the returns filed by the partnership are conclusive that the wife and not the husband was a partner in the business of the United States Fuel Co. We do not believe the decision of the Court of Claims goes to the length suggested by the petitioner nor sheds light upon the question involved, except unfavorably to the petitioner. In the last paragraph of the court's opinion it is said:

We are of opinion that the plaintiff's contract with some of his partners selling and assigning 199/800 of his 20 per cent interest in the net profits of the partnership does not affect the question at issue here. This was merely a side agreement which did not alter the responsibilities or the obligations of the plaintiff or the character of his interest under the partnership agreement. It was a matter between him and his partners and cannot be injected into the case as affecting the issue here between him and the government. We are of opinion that the action of the Commissioner of Internal Revenue in making the assessment of the plaintiff for taxation was right and that the petition should be dismissed, and it is so ordered.

Nor is the citation of the Uniform Partnership Act of value in determining the question. Before we can apply the provisions of that Act, we must determine whether the petitioner ceased to be a partner.

We are, therefore, led lack to a consideration of the instrument relied upon as shifting the tax burden to the petitioner's wife. That instrument does not purport to do more than operate as an assignment of profits of the partnership enterprise. The acts of the parties are also consistent with the instrument. In our opinion the case is exactly covered by theMitchel case, supra, and the action of the respondent in treating the income from the partnership as that of the petitioner must be approved. The cases relied upon by the petitioner are all cases in which there was an assignment of something in being. In the Paulson case the assignment was of a royalty interest in oil and gas leases, property the subject of sale. In O'Malley-Keyes v. Eaton the assignment was a portion of a beneficial interest under a will. In the Thomas case it is clear that an interest in the business was the subject of transfer. In this proceeding we believe there was a bare assignment of income to be earned and that no interest was transferred. The assignment was of "the profits henceforth hereafter to accrue * * * on my one-third interest of and in the said partnership of United Fuel Company, * * *." (Italics supplied.)

In the case of , this Board said, commenting on the Mitchel case, supra:

There was no attempt on his (Mitchel's) part to convey to his wife his interest in the partnership or any part thereof. She received no vested right in the partnership as such. All she received was a right to demand from him one-half of the profit he received from that business.

See also .

Judgment will be entered for the respondent.