dissenting: The holding of the majority opinion that Ida E. Cobb was not a partner in the Cobb Canvas Co. is based upon an ultimate finding of fact which reads as follows:
Petitioner and his wife did not in good faith and acting with a business purpose intend to join together in December 1945 in the conduct of the Cobb Canvas Company as partners.
It seems to me that this finding is wholly unjustified by the facts of record in this case as set out in the findings of fact. To use the language of the United States Court of Appeals for the District of Columbia in the recent case of Wenig v. Commissioner, 177 Fed. (2d) 62, reversing a memorandum opinion of the Tax Court:
We neither question nor depart from the findings of basic facts as made by the Tax Court. But we think its conclusions are not within the realm of legitimate inference from the record as a whole or from the specific facts found. * * *
Such is my view in the instant case. Based upon the undisputed evidence in the record, I think there should be an affirmative finding that Ida E. Cobb was a partner during the period in question and should be so recognized. It seems to me that to hold under the facts we have here that she was not a partner does violence to the rationale of the Supreme Court’s decision in Commissioner v. Culbertson, 337 U. S. 733.
My reasons for believing that Mrs. Cobb should be recognized as a partner under the facts of the instant case under the Supreme Court’s decision in the Culbertson case are stated more fully in a dissenting opinion which I have written in the W. F. Harmon, 13 T. C. 373. Reference is hereby made to my dissent in that case for a more complete statement of my views.