dissenting: The general facts in these proceedings do not appear to be in dispute. At the conclusion of the general findings of fact the majority of the Court has made the following ultimate findings of fact:
Petitioners did not relinquish domination and control over any part of the assets of the corporation by reason of the gifts of stock in the corporation to their wives, and, consequently, the wives did not contribute any property to tjie capital of the partnership.
I do not agree to the correctness of the above ultimate findings of fact. I think it is contrary to the findings of fact which have preceded it. Based on the general findings of fact which the majority has made, I would find ultimate facts as follows:
Petitioners Lowry and Sligh made irrevocable gifts to their wives of 450 shares each of Charles R. Sligh corporation stock. When this corporation was liquidated and dissolved in December 1938, the wives became the owners of their proportional part of the assets of the corporation. The partnership agreement entered into December 16, 1938, between petitioners and their wives created a legal, valid partnership between them with ownership of partnership profits as fixed in the partnership agreement. The earnings of the partnership thereafter allocable to the respective partners under the terms of the partnership agreements were the income of the respective partners to whom allocable.
Inasmuch as I do not agree to the ultimate findings of fact made by the majority to which I have called attention above, it of course follows that I do not agree to the conclusions reached in the majority opinion, which are typified by the concluding part of the opinion, reading as follows:
* * * Petitioners, it is concluded, did not relinquish their dominion and control over the interests in property which they purportedly gave to their wives by way of transfers of stock in the corporation, and, therefore, they did not make bona fide gifts to the wives. Francis B. Tower, 3 T. C. 396. It follows that the wives did not make contributions to the capital of the partnership, and they were not carrying on a business with petitioners in a partnership within the provisions of section 181 of the Internal Revenue Code.
There is a well settled line of cases holding that a husband engaged in a mercantile or manufacturing business can make his wife a partner in the business by making a bona fide gift to his wife of an interest in the business and then entering into a partnership agreement with the wife, she giving as her contribution to the capital of the partnership the interest given to her by her husband. Some of these cases are Richard H. Oakley, 24 B. T. A. 1082; Kell v. Commissioner, 88 Fed. (2d) 453; Rose v. Commissioner, 65 Fed. (2d) 616; Jasper Sipes, 31 B. T. A. 709; Walter W. Moyer, 35 B. T. A. 1155. In the Moyer case we said:
* * * The question to be determined, therefore, is whether the petitioner actually made a gift to his wife of an interest in the business in the amount of §100,000. If he did make a gift to his wife, she made a contribution to the business and hence had an interest in the partnership. * * *
As I have already stated, I think the evidence shows that in the instant case the petitioners did make bona fide gifts to their wives and a legal, valid partnership was formed. Therefore I think the line of cases which I have cited above controls. Clearly the instant proceedings are distinguishable from that line of cases which holds that a husband whose earnings are from personal services such as fees from medical practice, attorney fees, accounting fees, insurance commissions, or engineering fees may not make his wife a partner and have his personal service earnings taxed as partnership income. Among such cases are Mead v. Commissioner, 131 Fed. (2d) 323; Schroder v. Commissioner, 134 Fed. (2d) 346; Earp v. Jones, 131 Fed. (2d) 292; Tinkoff v. Commissioner, 120 Fed. (2d) 564, affirming Board of Tax Appeals memorandum opinion; Thomas M. McIntyre, 37 B. T. A. 812; Harry C. Fisher, 29 B. T. A. 1041; affd., 74 Fed. (2d) 1014.
The earnings of the Charles R. Sligh Co., a limited partnership, during the taxable years here involved were not personal service earnings. That fact appears too clear for argument. Therefore, in the instant proceedings I think the decision should be for the petitioners and I dissent from the view that the entire partnership earnings are taxable to petitioners, as the majority opinion holds.
ARundell, Leech, Mellott, and Disney, JJ., agree with this dissent.