dissenting: It is difficult to formulate a dissent in the field of intrafamily assignment cases such as this where so much depends upon the hearer of the evidence.- Commissioner v. Culbertson, 337 U. S. 733. Yet unless some effort is made to reconcile results in situations where evidentiary facts are similar, nothing but a quicksand of unreliable precedents can result.
No fact in this case serves to distinguish it from such decisions as J. M. Henson, 10 T. C. 491; Robert E. Werner, 7 T. C. 39; and Albert Nelson, 6 T. C. 764. It is true that the Henson case was reversed (C. A., 5th Cir.), 174 Fed. (2d) 846, but James Yiannias, a memorandum opinion decided on the authority of the Henson, Werner, and Nelson cases, was recently affirmed in a post-Culbertson opinion by still another circuit (C. A., 8th Cir.), 180 Fed. (2d) 115. And see Louis Visintainer, 13 T. C. 805; Elwin S. Bentley, 14 T. C. 228. The Yiannias case is not even mentioned in the present opinion. Certainly no effort is made to distinguish it, which would indeed be difficult, since the facts are so similar that even the type of business involved was the same. See also Wade Allen, 6 T. C. 899. The suggestion is that because this proceeding will be reviewed by a circuit which has several times reversed the Tax Court on cases in this field, the present result is justified. I hope we are not creating a principle which will be applied by the Tax Court with varying results depending upon the circuit to which the case will go on appeal.
Since it seems to me the present opinion announces as a rule of law that the mere signing of documents which purport to change the owner-operator of a business into an employee is sufficient to preclude our further penetration, and since that rule seems to me unquestionably erroneous under all the cases from Lucas v. Earl through Culbertson, I must respectfully dissent.
HaReoN, J., agrees with this dissent.