dissenting: I am unable to agree with the majority opinion, which holds that the trust for Samuel Feldman, petitioner’s minor son, was not a partner in the business partnership known as Brooks Clothes. The holding that the trust for Samuel Feldman was not a partner is based upon an ultimate finding of fact made by the majority as follows:
The parties did not, acting in good faith and with a business purpose, actually intend that the trust join together’ with petitioner and his brothers as a partner in carrying on business.
How the majority is able to make such a finding in face of the facts in the record of evidence as disclosed by the findings of fact which immediately precede it, is more than I can see. A trier of facts may not draw inferences which are altogether contrary to the facts proved and have no substantial evidence to support them. 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 Tlx 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. I have carefully read and examined the findings of fact submitted by Judge Opper, who tried the case, and adopted by the majority, and, with the exception of the ultimate finding to which I have just made reference, these facts seem full and fair. I am unable to find in them a single fact which, in my judgment, justifies the ultimate finding that the parties did not, in good faith, intend to take the ti;ust in as a partner.
What are the facts? Briefly, they are these: Petitioner Herman Feldman and four of his brothers were partners together in a clothing business, and Herman owned a 35 per cent interest therein. He decided in 1942 to give his son Samuel a 13 per cent interest in this business, and he did so through the medium of a trust. The provisions of this trust indenture are incorporated in the findings of fact and they seem to me to show a perfectly valid, irrevocable trust by which petitioner conveyed 13 per cent of his interest in Brooks Clothes to the trustee for the benefit of his son Samuel. Of course, it is true that this conveyance of the 13 per cent interest in Brooks Clothes to the trustee did not make the trust a partner in the business. One can not give a part of his interest in a partnership business to someone else aiid make that other person a partner in the partnership business, especially where there are other partners involved. They have to be consulted and give their consent before the trust can be made a partner. Therefore, if petitioner had stopped with the conveyance of 13 per cent of his interest to the trust, the trust would not have thereby become a partner and it might well be that petitioner would still be taxable on 35 per cent of the.profits of the partnership, even though he would have to account to the trust for 13 per cent of the profits. Cf. Lucas v. Earl, 281 U. S. 111. But petitioner did not stop there. He and his brothers who were partners in Brooks Clothes got together and agreed to take the trust into the partnership. The findings of fact state:
On July 1,1942, the six Feldman brothers, petitioner, Jack, Ad, Julius, Edward, and Maurice as trustee, executed an agreement stated to be supplemental to the original partnership agreement.
Then follows the supplemental agreement, which, so far as I can see, was a perfectly good legal agreement whereby Maurice, as trustee, was made a member of the partnership. Thereafter the trust was paid its full share of the profits in accordance with the agreement and on October 1, 1946, when the partnership was dissolved and the business was incorporated, stock in the new corporation was received by the trustee for Samuel Feldman in proportion to the trust’s interest in the partnership. What more than the foregoing facts would a taxpayer have to prove in order to establish the bona fides of a partnership ? I am at a loss to know. In holding that petitioner has not met his burden of proof to show the bona fides of the partnership, the majority opinion, among other things, says:
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 an 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. * * *
Just what is meant by the foregoing language is difficult for me to understand. If by it is meant that a trustee of a trust which has received a conveyance of an interest in partnership property can not become a partner in that partnership by proper agreement entered into with the other partners using the interest conveyed to the trust as its contribution to the capital of the partnership, then it seems to me that holding is contrary to the weight of authority and is wrong. Cf. Thompson v. Riggs (CA-8), 175 Fed. (2d) 81. The Thompson v. Riggs case was a case tried before a jury in the United States District Court for the Eastern District of Arkansas. The jury found that the six trusts involved had become, by agreement of the parties, bona fide members of the J. A. Biggs Tractor Co., a partnership. From the judgment of the District Court entered on this verdict, the collector of internal revenue appealed. The United States Court of Appeals affirmed the judgment, holding that there was substantial evidence to support the verdict of the jury. The circumstances as to how the six trusts became members of the partnership in that case were briefly these: Biggs, Sr., owned a 60 per cent interest in the partnership of J. A. Biggs Tractor Co. and his son owned 40 per cent. To use the language of the court:
The court concluded on these facts and other facts in the record that there was a valid partnership for Federal income tax purposes.
While there are some differences in the facts of the instant case from the Thompson v. Riggs, case, supra, I would not think these facts are sufficiently different to distinguish the two cases.
Taxpayer was then in bad health and desired to retire from active management and to have his son take over ^control. To accomplish these purposes and to provide for his wife and the family of his son (wife and four children), he irrevocably created six separate individual trusts, conveying to each a 5% interest in the partnership business from his 60%. Right after creation of the trusts, a new partnership contract was executed by taxpayer, his son, and the trustees of the six trusts. * * *
For the foregoing stated reasons, I respectfully dissent from the majority opinion. ^