OPINION.
Oppeh, Judge:Although it is clear that no one factual element may suffice to determine the question, Commissioner v. Culbertson, 337 U. S. 733, our conclusion here from all the circumstances as incorporated in the foregoing ultimate finding of fact is that the parties did not intend in good faith and for a business purpose to conduct the business of Brooks Clothes in partnership with the trust for petitioner’s minor son. We recognize, of course, that the contribution of capital originating with a donee is not an essential for a valid partnership, even in the absence of managerial or vital additional services. But the mere legal title to capital acquired by gift is likewise not alone sufficient within the doctrine of the Culbertson case.1 To our mind, that is the sole indication of the existence here of the intention to conduct a business partnership.
As the Supreme Court said in the Culbertson case (p. 744) :
Unquestionably a court’s determination that the services contributed by a partner are not “vital” and that he has not participated in “management and control of the business” or contributed “original capital” has the effect of placing a heavy burden on the taxpayer to show the bona fide intent of the •^parties to join together as partners. * * *
We take this to mean that in discerning the purpose of the arrangement and whether there exists the necessary intent of “carrying on business in partnership,” 2 Internal Bevenue Code, sec. 181, the contribution of needed capital which does not already exist in the business or at the,, disposal of the partners, the participation in management, or the rendering of vital services, would tend to furnish the evidence of a business purpose and an intent to conduct a business; and that accordingly, the absence of all of these factors places a correspondingly heavy burden upon one who would show that notwithstanding the lack of these elements some other evidence exists from which the requisite intent and business purpose may be gathered. In the case before us we are unable to find that petitioner has sustained that burden or furnished that missing evidence.
The trustee did not perform services for the partnership as trustee which can be segregated from his services in his individual capacity as a partner. Samuel Friedman, 10 T. C. 1145. Even laying to one side a possible distinction between the trust which owned the “partnership” interest and its beneficiary, the latter — who was but thirteen at the time the trust was created — performed no services in the years before us which are indicated as being of any real value to the partnership business.
Such effort as there is to demonstrate a “business purpose” is confined entirely to anticipations for the future.' But the definite teaching of the Culbertson case is that regard must be had to the circumstances in the taxable years and not to some future development for the examination of this phase of partnership situations. “* * * The intent to provide money, goods, labor, or skill sometime in the future can not meet the demands of §§11 and 22 (a) of the Code that he who presently earns the income through his own labor and skill and the utilization, of his own capital be taxed therefor. The vagaries of human experience preclude reliance upon even good faith intent as to future conduct as a basis for the present taxation of income.”3 These observations are pointed up by the fact that in 1946, when the son was seventeen years of age, the partnership was dissolved and the business reorganized as a corporation, and that it was not until the following years that the son performed any services which could possibly be regarded as of significance.
Nor do the situations of the parties before and after the so-called partnership, the domination of the business by petitioner, or the aspect of actual earning of the income support petitioner’s contentions. See Economos v. Commissioner (C. C. A., 4th Cir.), 161 Fed. (2d) 165. Whatever capital was donated by petitioner to the trust was in the business before the trust was created. It remained there. The combined share of the profits allocated to petitioner and to the trust after July 1,1942, equaled precisely the petitioner’s share before that time. The only change was that a part of petitioner’s profits was then to be distributed to and retained by the trust.
It is not even suggested in the trust instrument that this transfer was made for any purpose connected with the business. The stated motivation was “to provide an independent estate for my son Samuel Feldman,” a personal objective of petitioner which, praiseworthy as it may be, can not have been of benefit even prospectively to the business of Brooks Clothes.
The trust income was to be accumulated throughout the minority of the son. He could not secure any part of it in the meantime, regardless of the value to the business which his services might ultimately assume.
If the son died before he could secure these accumulations, they were to go to the presumable recipients of petitioner’s bounty, petitioner’s wife and his daughter, unless in the meantime the son made a will. The latter was largely illusory, since in the state of the son’s domicile — which we take to be that selected for him by petitioner — the son, being only thirteen at the time, was legally incapable of executing a valid will.4 Prior to majority he could not will real property,5 and in many jurisdictions he could not make a valid will.6 Thus, if petitioner thought it important enough to change the family domicile, or the trustee invested in real estate, destination of the partnership income for the instant tax years would be that selected by petitioner exclusively.
The business was created and apparently brought to its successful position largely through the efforts of petitioner. There is no reason to assume that the establishment of the trust would change this situation. Yet petitioner’s designated salary was but $14,560 out of a business which in the years before us earned from $200,000 to over $400,000.
Assuming that capital was a vital income-producing factor, no showing is made of what function that capital performed. No aid is thereby furnished in solving the dilemma that, if the capital transferred to the trust was ah essential element of the earning power of the business, the gift could not have anticipated its withdrawal by the trustee, since that would have destroyed or crippled the enterprise; whereas if it was not, no essential contribution was made by the trust. We are not able in the face of these facts to assess the realities of the gift apart from an implied condition that, if it made any contribution, it must remain in the business in which both petitioner and, ultimately, the substituted, trustee were large participants. It suffices to say that nothing in the conduct of the parties indicates that anything more was intended by the gift than that a part of petitioner’s income should be set aside for the future benefit of his son, or of the other members of his family.
As if to underscore the control which petitioner felt it essential to retain, the “partnership” agreement provided that if a partner withdrew or died,, rights to participate in the purchase of the interest thus made available, conferred originally by an earlier partnership agreement, were not to pass to the trust, but were to remain in petitioner. Based upon all of the facts and in the light of the considerations held to be appropriate in cases of this character, we conclude that it was not intended that the trust was to be a bona fide partner in the carrying on of the business and that respondent properly found that the income in question was taxable to petitioner.
Reviewed by the Court.
Decision will he entered v/nder Rule 50.
“* * * The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower ease, but whether, considering all the facts — -the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” (Commissioner v. Culbertson, 337 U. S. 733, 742.)
» * The partnership sections of the Code are, of course, geared to the sections relating to taxation of individual income, biuce'ao tax is imposed upon partnership income as such. To hold that ‘individuals carrying on business in partnership’ include persons who contribute nothing during the tax period would violate the first principle of income taxation: that income must be taxed to him who earns it. Lucas v. Earl, 281 U. S. 111 (1930); Helvering v. Clifford, 309 U. S. 351 (1940); National Carbide Corp. v. Commissioner, 336 U. S. 422 (1940).” (Commissioner v. Culbertson, supra, 739-740.)
At that point there is a footnote reading as follows :
“8. The reductio ad absurdnm of the theory that children may be partners with their parents before they are capable of being entrusted with the disposition of partnership funds or of contributing substantial services occurred in Tinkoff v. Commissioner, 120 Fed. (2d) 564, where a taxpayer made his son a partner in his accounting firm the day the son was born.”
See Holzman v. Wager, 114 Md. 322; 79 Atl. 205, 206.
“A is trustee of Blackacre and of certain securities for B, an infant. When nineteen years of age B executes a win devising and bequeathing his interest under the trust to C, and dies during the same year. If an infant has not capacity to devise legal interests in land, but has capacity if he is over eighteen years of age to bequeath legal interests in personal property, the devise of B’s interest in Blackacre is void but his bequest of his interest in the securities is valid.” Restatement of Trusts, 133, illustration 3.
“under the statutes of many of the states, however, the right to dispose of property by last will is limited to persons of full age, or to those over eighteen years of age.” 57 Am. Jur., see. 54.