dissenting: I find myself in disagreement with the majority opinion because I think the reasoning used therein is inadequate to support the conclusion reached.
In the first place I think it is important that we bear in mind the issue which has been raised by the pleadings. In his explanation of adjustments made in the income tax return of petitioner for the year 1941, the Commissioner stated in his deficiency notice as follows:
(a) You reported net income from business in the amount of $12,267.55, representing the income earned for the period of operation January 1,1941 to October 10, 1941. Thereafter you contend the business was operated as a partnership between yourself and wife Elsie H. Canfield. No partnership income was reported in the year 1941.
*******
It is held that all the income from the business carried on under the name of Canfield Motor Sales, in the amount of $33,192.60, is taxable to you.
To this determination of respondent, the petitioner assigned error as follows:
(a) Respondent has erroneously refused to recognize the existence of a partnership entered into between petitioner and his wife on October 10, 1941 for the carrying on of a business theretofore conducted by petitioner as an individual proprietorship under the name of Canfield Motor Sales.
Assignment of error (b) is merely an elaboration of assignment of error (a). Respondent’s answer to petitioner’s assignments of error consisted of a general denial. His answer did not contain a statement of any facts upon which he relied for defense or for affirmative relief.
Thus, it seems to me that the issue squarely raised by the pleadings is whether during the period October 10 to December 31, 1941, petitioner and his wife were partners in the business of Canfield Motor Sales. If the issue is decided in petitioner’s favor, I think it should be held that in the state of the pleadings the wife would be entitled to at least that proportion of the profits which would be based on her capital contribution of $4,900 to the enterprise as compared with her husband’s contribution of $12,543.49. The petitioner should, of course, be taxed on his share of the profits thus arrived at. The majority opinion holds, properly I think, that, because the wife contributed $4,900 out of her own capital to the business, she thereby became a partner in the business under the written partnership agreement, within the meaning of the Federal statute.
But the opinion goes on to say that before there is any division of the profits there must first be taken out of the earnings 75 per cent attributable to petitioner’s services. I do not see where any such issue has been raised by the pleadings. It would, of course, have been within the rights of the partners to have had such arrangement in the partnership agreement, but they did not do so. It may well be that the Commissioner himself could properly raise such a question by a determination of that kind in his deficiency notice or by affirmative allegations in his answer, but he has not done so. It does not appear to me why we should raise such an issue.
Corpus Juris, vol. 47, sec. 232, p. 790, says:
* * * It is entirely competent for partners to determine by agreement, as between themselves, the basis upon which profits shall be divided, even without regard to the amount of their respective contributions, and such an agreement should be given effect, in the absence of a change; * * *
The Supreme Court of the United States, in Paul v. Cullum, 132 U. S. 539, held to the same effect as the above quotation from Corpus Juris. In that case, among other things, the Court said:
While, in the absence of written stipulations or other evidence showing a different intention, partners will be held to share equally both profits and losses, it is entirely competent for them to determine, as between themselves, the basis upon which profits shall be divided and losses borne, without regard to their respective contributions, whether of money, labor, or experience, to the common stock. Story on Partnership, §§ 23, 24. Such matters are entirely within the discretion of parties about to assume the relation of partners.
In Merten’s Law of Federal Income Taxation, vol. 6, sec. 35.18, dealing with the subject of “Computation of Distributive Shares of Partners,” the author, among other things, says:
Each partner is thus required to report his “proportionate share of the partnership net income.” The proportionate share is determined by the partnership agreement, which involves an interpretation of the agreement.
But we must consider, of course, in a case of this kind the recent decisions of the Supreme Court in Commissioner v. Tower and Lusthaus v. Commissioner.
I agree that under the rationale of the Tower and Lusthaus cases, the wife did not acquire any interest in the partnership by reason of any gift from her husband of part of his interest in the business. The extent of the interest which she acquired in the partnership was represented by the independent capital of her own which she contributed. That was $4,900. It would seem that her share of the 4 900 profits would be ^ ^ of the whole in the absence of an agreement that the husband should first be paid for his services out of the earnings or the raising of such an issue by the Commissioner by affirmative allegations.
For the reasons above stated, I respectfully dissent from the majority opinion.
Aiutndell, Leech, and Johnson, JJ., agree with this dissent.