dissenting: There is no doubt that the present decision is in accord with the decisions cited. Despite such decisions, I have never been able to understand why one who is a partner must report as his income the full amount of his distributive share of the partnership earnings, despite the existence of an enforceable agreement under which he holds all or part of his partnership interest as a trustee for another, or where there is a subpartnership agreement. The tax is imposed only upon the income of the person taxed, not upon income which he collects for another, because the property from which it is derived is in his name.
The cases in which one attempts to assign to another, without consideration, income to arise in the future, whether from a partnership interest or from other property, or reserves the right to revoke an assignment of an income-producing asset (Ormsby M. Mitchel, 1 B. T. A. 143; aff'd., Mitchel v. Bowers, 15 Fed. (2d) 287) do not seem in point. In the first case the gift of future income is unexecuted, and incomplete until the income is received and paid over, and the unexecuted gift is revocable at will. In the second case, the income is likewise in the control of him who earns it. But where, as here, there is a valuable consideration and an enforceable claim to the earnings of the partnership, there is no reason or authority for requiring the ostensible recipient to return as his income that which belongs to another. See also Poe v. Seaborn, 282 U. S. 101.
MoMahoN agrees with this dissent.