dissenting: Respondent’s determination under section 22 (a) is that income paid to petitioner’s wife was received as compensation for payment of services rendered by petitioner. Petitioner admits that something which he received constituted the arrangement under which he was to receive compensation for personal services. The record does not show precisely what the arrangement was. The inference from the record is that, in the year the services were completed and compensation became payable, assuming petitioner is on the cash basis, he did not report for tax that compensation. In 1938 and 1939 the arrangement bore fruit; cash payments were made. Perhaps when the arrangement was made there was some uncertainty that it would yield cash to petitioner, (which seems doubtful) but, at any rate, it did in the taxable years. The cash received was intended by the New York & Foreign Development Co. to represent compensation to petitioner for personal services. The arrangement made in 1935, or before, was intended to put cash in petitioner’s hands in lieu of cash the Development Co. otherwise would have paid petitioner for his services. Since there is no doubt that the means employed was the means of paying petitioner for his services, and since there is no way of passing on to another the tax on compensation for personal services, petitioner is taxable on the sums paid in the taxable years. The assignment to petitioner’s wife was one of the anticipatory arrangements to divert income from the taxpayer who earned it which can not be approved under the cardinal rule of Lucas v. Earl, 281 U. S. 111. See also, Commissioner v. Smith, 324 U. S. 177, and Harrison v. Schaffner, 312 U. S. 579, where the following was stated:
Since granting certiorari we have held, following the reasoning of Lucas v. Earl, supra, that one who is entitled to receive at a future date, interest or compensation for services and who makes a gift of it by an anticipatory assignment, realizes taxable income quite as much as if he had collected the Income and paid it over to the object of his bounty. Helvering v. Horst, 311 U. S. 112; Helvering v. Eubank, 311 U. S. 122. Decision in these cases was rested on the principle that the power to dispose of ineome is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income “derived from any source whatever.” [Italics added.]
The theory of petitioner goes outside the question presented by the respondent’s determination. Petitioner has not faced the question squarely and he has not introduced evidence which overcomes the correctness of the determination. For example, it can be suggested that if petitioner had been paid compensation for his personal services in property, he would have been bound to report such payment for income tax at the value of the property. Or, if the property had no value at the time, he would have to report for tax what he realized from it when realization occurred. See Commissioner v. Smith, supra. Until petitioner reports for tax the compensation for his personal services, no question can be reached as to the proposition that the donee is taxable on the income of income-producing property rather than the donor. Earnings, for purposes of income tax, are a particular class of income. Section 22 (a) reaches earnings, from whatever source derived. Earnings can be in many forms. The form which they take can not serve to frustrate the impact of the statute which taxes earnings.
The stipulation under which this case was presented shrewdly confined its content to a few matters designed to put ahead of the real question the theory that the sums involved represented no more than earnings from property which petitioner had given away. I am not satisfied from the evidence that the sums were just earnings from income-producing property rather than payments from someone who received royalty payments which thereafter passed to petitioner under his arrangement with the New York & Foreign Development Co. to receive payment for services. Some documents in evidence are ambiguous, and it is obvious that all the material facts are not in the record. The record does not show what the arrangement really was under which petitioner was to be paid for his services. There is a large element of failure to overcome the determination. But, even so, “in point of substance, [petitioner] has parted with no substantial interest in property other than the specified payments of income which, like other gifts of income, are taxable to the donor.” Harrison v. Schaffner, supra.
I respectfully dissent.