*3924 The earnings of petitioner, a resident of California, are taxable to him even though he assigned one-half of them to his wife.
*1237 This proceeding results from the determination by respondent of a deficiency in income tax for 1920, amounting to $381.07.
Petitioner alleges error in that respondent has included in the income of petitioner community income which belonged to his wife under an existing agreement and which was reported by his wife in a separate return for the same year.
FINDINGS OF FACT.
Petitioner and his wife, Edith C. Maling, are residents of Mill Valley, Calif. They were married about thirty-two years ago. They had no separate property when married and neither of them has acquired any separate property since marriage, other than the separate shares they claim of the husband's earnings. Under date of April 12, 1919, petitioner executed an instrument as follows:
THIS WAIVER made this 12th day of April, 1919, by WALTER B. MALING of San Francisco, California, - husband - to Edith C. Maling, wife -
WITNESSETH:
*3925 THAT WHEREAS, all property now in my possession, and all my earnings, present or future, is community property, and the decisions of the Courts of this State create a doubt as to whether or not the wife has a vested right in *1238 her half of the property of such community property (See ) but that the case of , construing similar statutes seems to be the better and just decision, and in order to remove such doubt, I, said husband, hereby waive all rights in the one-half of said property and earnings - that it to say, in my wife's share thereof, and concede and declare that said wife's share is vested in her, and is hereby conveyed to her, and that I merely retain the right of management and control thereof as provided in Sec. 172 Civil Code as her trustee.
The wife of petitioner was informed of the instrument and she accepted and agreed to same.
In 1920 petitioner received a salary as Clerk of the United States District Court at San Francisco, and additional income from a receivership by appointment of the court. The wife of petitioner was not engaged in any business, did*3926 not have a separate bank account, and after the agreement of April 12, 1919, husband and wife continued to use a joint bank account subject to the check of either of them. Neither was possessed of any income-producing property in 1919 or 1920.
Husband and wife filed separate income-tax returns for 1920, in which each reported one-half of the community income.
OPINION.
TRUSSELL: The sole issue in this appeal falls squarely within our decision in , holding that the earnings of the husband are taxable to him when received even though he has, by an assignment which is legal and enforceable under the laws of the State of California, released to his wife as her separate property one-half of his earnings. We therefore sustain the respondent.
Judgment will be entered for the respondent.