*3134 INCOME - WIFE'S SEPARATE. - Petitioner and his wife, residents of California, entered into contract by which the wife furnished $5,000 from her separate estate to enable petitioner to engage in moving picture production, the profits therefrom to be divided equally and constitute separate property of each. Held, that one-half of the proceeds resulting therefrom was the wife's separate property and income and should not be included in husband's income.
*977 This proceeding is for a redetermination of a deficiency in income tax in the amount of $1,291.95 for the year 1921. The error complained of is that the respondent included in petitioner's income, on the ground that it was community property, certain income or profits of his wife's separate estate which, by reason of a contract between them, was her separate income and not community property.
FINDINGS OF FACT.
Prior to 1920 the petitioner was a practicing lawyer in Los Angeles, Calif., with an income from his profession of about $300 per month. In 1918*3135 he married and at all the times herein mentioned he and his wife resided in the State of California. At the time of the marriage the wife of petitioner had $5,000 in cash or on deposit in bank, part of which she had inherited and the balance of which she had earned before her marriage. After the marriage she retained control of this fund as her separate property until the making of the contracts and investments involved herein.
*978 During 1919, the petitioner had a number of conferences with Benjamin H. Hampton for the purpose of considering the advisability of making investments and engaging in the production of moving pictures. Hampton controlled two corporations, which controlled certain rights to produce pictures founded on stories by Zane Grey and other authors, and also had contracts with distributing companies or agencies for the distribution of the pictures to the exhibitors in this country, Canada, and foreign countries. Hampton and his companies needed financial assistance and it was finally proposed that, if the petitioner would raise and contribute $5,000 to the enterprise, he would be given a position and a salary, the latter of which would about equal one-fourth*3136 of the profits, and Hampton would contribute $15,000 and receive three-fourths. Petitioner was entirely without experience in the motion picture business and he had no funds.
The method of financing the production of a picture was substantially as follows:
Taking, for example, a picture that was estimated in advance to cost $80,000, the American distributor would advance $40,000, the foreign distributor would advance $10,000 and the Canadian distributor $10,000. This would leave $20,000 to be provided by Hampton and petitioner in the respective amounts of $15,000 and $5,000. The completed picture was turned over to the distributors, who in turn sold or rented them to the exhibitors. Contracts with the distributors were that the producer was to have 60 per cent of receipts and the distributor 40 per cent. Against the 60 per cent going to the producer, the distributor charged the $40,000 or whatever other sum it had advanced, and other necessary expenditures. On account of the loose method of accounting and the difficulty of checking up on receipts of distributors, it frequently happened that the producer never received anything from the distributors except the money advanced*3137 for and during the production of the picture. On account of these conditions, it was the custom for the producer in making his estimate of cost of a picture to include therein the customary profit expected to be derived and this was paid to those furnishing the money, other than distributors, in the form of salary during the progress of the work, although the recipient might perform no services whatever other than furnishing money. The salary was considered as being a return of and profit on the money advanced. The business was very hazardous, but if successful profits were large.
As the petitioner had no funds and was desirous of accepting Hampton's proposition, he laid the situation before his wife and thoroughly explained the possibility of gain or loss and proposed to her that, if she would advance the $5,000 necessary for the venture, one-half of all they got out of the venture should be her separate and *979 individual property, and the other half should be his separate and individual property.
The wife accepted and the agreement was reduced to writing and signed by both parties.
Petitioner entered into the proposed agreement with Hampton, and his wife furnished*3138 the required sum of $5,000 from her separate property, which was invested and reinvested in the production of pictures over a period of about three years. During this period petitioner gave up his law practice and devoted his time to the production of pictures, though it is not shown just what services he performed. The venture proved profitable and for the year 1921 the amount received from it by petitioner and wife was $20,800 and $846.90 interest on bank deposits derived therefrom. This they treated as profits under their contract and each returned one-half thereof for taxation for the year 1921. The respondent added the entire sum returned by the wife from this venture to the income of petitioner, apparently on the theory that the salary or receipts from the picture business was community property and that the whole of it was taxable to petitioner. The salary or share of the profits derived from the venture was in consideration of the services of petitioner and advancement of funds by his wife, and no apportionment has been or can be made as to how much each is entitled to other than their own agreement. It was a common practice at that time for one person to furnish money*3139 to another performing services and to divide the profits or so-called salary equally.
The arrangement between petitioner and his wife was reported to and discussed with Hampton.
The returns of the venture or so-called salary, were paid by the Federal Photoplays of California to petitioner, who deposited same in a joint bank account to the credit of himself and wife.
OPINION.
MILLIKEN: By Sections 162, 163, and 164 of the California Civil Code, it is provided that all property owned by either spouse before marriage, or thereafter acquired by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is separate property, and all other property acquired after marriage by either constitutes community property. . All community income in California is returnable by and taxable to the husband. ; .
The question for decision in this case is whether the share of petitioner's wife in the profits of the moving picture transaction is her separate property or is community property.
Section 158 of the Civil Code of California*3140 provides: "Either husband or wife may enter into any engagement or transaction with *980 the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts."
This section of the Code has been frequently before the courts of California and this Board and it is clear that husband and wife may freely and legally contract with each other with respect to their separate and community property. ; ; ; ; ; .
Various forms of agreement between husband and wife residing in California have been before this Board and many of them have been sustained. In , three brothers took their wives in as equal partners in a partnership. *3141 The wives contributed neither services nor capital, but it was agreed that they should share equally in the profits and losses. The wives were held partners and their share of the profits was taxable to them respectively. See also ;; ; and .
In the instant case the contract between petitioner and wife did not relate to community property, nor did it attempt to change the character of the community property. The contract was for the use of the separate property of the wife and fixed the profit or compensation therefor. She was entitled to this under the laws of California, irrespective of the contract, and its only effect was to fix the amount or rate of profit to which she was entitled. She could have made such a contract with a third person for a division of the profits and under California law could do the same with her husband.
In our view of this matter it is immaterial whether we consider the arrangement one of partnership, subpartnership, or joint venture. The wife was entitled to one-half of the*3142 profits as her separate property, and the fact that the husband collected it first is not controlling for in such case he merely acted as an intermediary and held it as trustee for her. .
The cases of ; ; and , are not controlling, for in none of them did the question of the use of the separate property of the wife and her right to profits therefrom arise.
The recent cases of , and , are not in point, for in neither did the contract provide that the earnings of the parties should be their separate estate and in neither was there a question of the use and investment of the wife's separate property.
The income received by the wife in 1921, resulting from the salary or profits of the moving picture venture and the interest on the *981 funds derived therefrom, was her own separate income and property, and was improperly added to petitioner's income.
Judgment will be entered*3143 under Rule 50.