dissenting: The gist of the majority opinion in the instant case is that the wives of the petitioners were not partners with them in the ownership and operation of the Sweet Clean Damp Wash Laundry and the Perfect Laundries, both businesses being located in Pittsburgh, Pennsylvania, because no completed gifts were made by petitioners to their wives of any interest in the assets of the business.
I do not accept as correct the conclusion of the majority opinion that no completed gifts were made to the wives. I think the undisputed facts which have been stipulated show that a completed gift was made. If we had a gift tax case here, I think we would hold that completed gifts were made, and such holding would be proper. See Robert P. Scherer, 3 T. C. 776.
Among the reasons given in the majority opinion as to why the gifts from petitioners to their wives were incomplete, is that:
* * * It was provided that the husband should succeed to the interest of his wife upon her death, but there was no corresponding provision entitling the wife to the husband’s share if he predeceased her. * * *
Presumably the above quoted language from the majority opinion refers to paragraph seventh (a) of the partnership agreement, which reads as follows:
It is understood and agreed between the parties that in the event of the death of Sarah Appel Munter, leaving to survive her husband, Sidney S Munter, then he shall succeed to her undivided one-fourth (%) interest and he shall assume all the debts and obligations of Sarah Appel Munter in the partnership.
Paragraph seventh (b) of the partnership agreement contains the same provision with reference to the reversion of the partnership interest of .Roberta Gross Munter to her husband Carl P. Munter.
The foregoing provisions simply provide for the reversion to the husbands of the subject matter of the gifts in the event the wives predecease them and do not have the effect of making the gifts incomplete. Other provisions in the partnership agreement are given in the majority opinion as reasons for holding the gifts incomplete. These other provisions, I think, are just as far from having that effect as the one to which I have just referred. The majority opinion relies upon three cases for support: Edson v. Lucas, 40 Fed. (2d) 398; Johnson v. Commissioner, 86 Fed. (2d) 710; and Tyson v. Commissioner, 146 Fed. (2d) 50. In my judgment only one of these cases is in point as to the issue decided and, as I read it, this case is directly contrary to the result reached in the majority opinion. That case is Edson v. Lucas. In that case the court reversed a decision of the Board of Tax Appeals which had held incomplete a gift of shares of stock in the Texas Oil Co. which Mrs. J. A. Edson had made to her daughter, Ger-aldyne Edson Pratt. In reversing the decision of the Board the court, among other things said:
Tbe evidence in this case is conclusive of the fact that Mrs. Edson transferred the legal title and all dominion and control of the 708 shares of Texas Company stock to Mrs. Pratt in 1919, by transfers of the certificates of stock, which was certainly the most effective way of vesting her daughter with possession and control, that Mrs. Pratt accepted the transfer and assumed all dominion and control over the stock and the income therefrom and the proceeds thereof. The condition as to the disposition of the proceeds, if the stock were sold, was a condition subsequent; that is, a condition which did not interfere with the vesting of the title in Mrs. Pratt. [Citing authorities.] The condition as to the principal remaining intact was of the same character, and the provision as to the ultimate disposition of the gift, in case Mrs. Pratt 'predeceased her father and mother, did not invalidate the gift, as has already 6een pointed out. [Italics supplied.]
So, as I view it, Edson v. Lucas, supra, certainly does not support the conclusion reached in the majority opinion, but is to the contrary.
The case of Johnson v. Commissioner, supra, has no application to the facts of the instant case, in my opinion. That was a case where the Second Circuit affirmed a decision of the Board of Tax Appeals reported at 33 B. T. A. 1003. The substance of the court’s opinion in affirming us was that where a wife delivered to a trustee, as corpus of a trust, a check which she had received from her husband, and the husband, as part of the same transaction, executed a demand note to the trustee for a loan in the same amount in accordance with provisions of the trust requiring the trustee to make such loan on request, payments made by the husband to the trustee as interest on the note were held properly disallowed as a deduction as “interest” from gross income in computing income tax, since the transaction did not constitute a gift to the wife, but was an unenforceable gratuitous promise to make a gift in the future. It seems to me that no further discussion than the above recital of the facts is necessary to demonstrate that Johnson v. Commissioner has no application to the facts of the instant case.
The third case cited by the majority opinion in support of the conclusion reached is Tyson v. Commissioner, supra. Only one quotation from the facts of that case is needed to demonstrate its inapplicability to the instant case. The court, in affirming a memorandum opinion of the Tax Court, stated the facts which were present in the case. Among those facts the court enumerated the following:
* * * It was further provided that petitioner’s wife “is not to be considered a partner in the * * * business, * * * nor is she to acquire any right, title or interest in or to the good will of such business, * * * or to the * * * profits from the sale of such business * * * [she] being hereby specifically and definitely limited to the profits accruing from the regular operation and conduct of such business as a going business. And in no event, * * * is * * * [she] chargeable with any net loss occasioned by the operation of said business.” [Italics supplied.]
On such facts as these the court affirmed the Tax Court in holding that there had been no completed gift of a property interest in his business by the taxpayer to his wife, that she was not a partner with him in the business, and that all of the profits therefrom were taxable to him.
It would seem to require no further discussion to establish the premise that the facts of the Tyson case are so different from the facts in the instant case that it is no authority for the result reached here. In the instant case the partnership agreement between petitioners and their wives is set out in the majority opinion. It is, I think, a well integrated, well drawn, partnership agreement providing for the sharing of profits and losses between the respective partners. If it does not establish a valid, legal partnership in the ownership and operation of the two laundry properties in question, then it must be because the wife can not be a partner with her husband in a commercial enterprise of this kind unless she brings in outside capital of her own. It must be because she can not make property which she has received as a gift from her husband her capital contribution to the partnership. Such a holding would be contrary to such cases as Robert P. Scherer, supra; J. D. Johnston, Jr., 3 T. C. 799; Felix Zukaitis, 3 T. C. 814; and M. W. Smith, Jr., 3 T. C. 894.
One of the strongest circumstances in the record showing that the petitioners did intend to make completed gifts to their wives is that recited in the following part of the majority opinion:
Two months after the execution of the agreement set out above deeds were executed by petitioners and their wives conveying to a straw man the real estate used in the two partnerships, and reconveyance was immediately made by such grantee to petitioners and their wives of the same property, by which it was provided that each petitioner and his respective wife were vested with an estate by the entireties in one-half of the conveyed property.
These deeds are in the record and, so far as I can see, are regular and correct in form, and created tenancies by the entireties in the two laundry plant lands and buildings, under the laws of the State of Pennsylvania. If that sort of a conveyance did not vest in the wives actual property interests in the laundry plants which were being operated by the partnership, then I do not understand the law governing conveyances. If this was not a bona fide recognition of the partnership agreement which had been entered into May 1, 1940, then I fail to see how there could be any such thing as bona fide recognition. Under the laws of Pennsylvania a wife has a very real and substantial interest in property which she and her husband own as tenants by the entirety. See George K. Brennen, 4 T. C. 1260.
In the instant case there is no dispute as to the income of the partnership. That has been stipulated. The only dispute arises because the Commissioner has refused to recognize the wives as partners and seeks to tax all the income of the partnership to petitioners. Under the facts which have been stipulated, I think that is contrary to law.
It is sometimes said, rather loosely I think, that whether or not a partnership exists is primarily a question of fact and each case must be decided upon its special facts. It is true of course that most tax cases, like most other lawsuits, must be decided upon their special facts. I have never heard anyone contend otherwise. But, if by this expression is meant that whether a partnership between two or more persons exists in a given case is a pure question of fact, such, for example, as the value of a given parcel of property, or whether a debt became worthless in a certain year, or whether salaries paid officers and employees by a corporation are reasonable, then I disagree with it. These latter, as I view them, are indeed pure questions of fact, but whether a partnership exists in a given case involves principles of substantive law as well as questions of fact. The Board of Tax Appeals, now the Tax Court, often quoted the following established definition of a partnership:
The requisites of a partnership are that parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits.
See section 35.03, Mertens Law of Federal Income Taxation. When the principles of substantive law embodied in the foregoing definition are applied to the stipulated facts in the instant case, I think it is clear that in the taxable year a partnership did exist between petitioners and their wives, and there has been no failure of proof in establishing that such a partnership did exist.
Because the majority opinion holds otherwise, I respectfully dissent.