concurring: If we are not to be misled by mere terminology, it seems to me the petitioners here did no more than was done by the taxpayer with equal lack of success in Burnet v. Leininger, 285 U. S. 136. There the business conducted was the operation of a laundry, and I think we may safely assume that the partnership assets included a physical plant. The assignment relied upon was of a part of the taxpayer’s “interest in the partnership,” from which it was contended “that the assignment to his wife was of one:half of the ‘corpus’ of his interest and that this ‘corpus’ produced the income in question.” As to this the Supreme Court commented:
* * * The characterization does not aid the contention. That which produced the income was not Mr. Leininger’s individual interest in the firm, but the firm enterprise itself, that is, the capital of the firm and the labor and skill of its members employed in combination through the partnership relation in the conduct of the partnership business. * * *
In this case the agreement of the parties provides:
* * * It is further agreed that if any of the parties hereto [petitioners] should make such transfers of portions of their partnership interests as has been heretofore agreed upon, such transfers shall be made with the understanding and subject to the condition that the active control, operation and management of the said partnership shall remain in the parties hereto and although such transfers shall constitute outright transfers and unconditional transfers of interests in the assets, income and liabilities of said co-partnership, such transfers shall only constitute transfers of interest in the assets, income and liabilities in said co-partnership, but shall not constitute transfers of shares in the control, operation or management of the partnership * * *.
That envisages more of an agreement to exclude the wives and children from the partnership rather than one treating them as “individuals carrying on business in partnership.” Sec. 181,1. R. C.
It is difficult for me to see that each of these petitioners has done any more by the formal agreement with his copartners than Leininger could and did do without it. Very probably the wife acquired rights under the agreement in the Leininger case which were enforceable against her husband as to both “corpus” and income,1 as I have no doubt that the wives and children have secured here. But they are derivative rights, and do not solve the familiar problem exemplified by Lucas v. Earl, 281 U. S. 111, of the true source of the income, and hence of whose income it was for purposes of imposing the tax burden. Doll v. Commissioner (C. C. A., 8th Cir.), 149 Fed. (2d) 239.
“* * * the agreement « * ♦ cannot * • * have amounted to more than an equitable assignment of one-half of what her husband should receive from the partnership * * Burnet v. Leininger, supra.
“Equitabt.e Assignment. An assignment which * * * will be recognized and enforced in equity.” Black’s Law Dictionary, 3d Ed.