*3840 From the evidence we are unable to determine that the income of the petitioners is exempt from income tax.
*245 These proceedings involve deficiencies in income tax in the amounts and for the calendar years as follows:
| Docket No. | 1919 | 1920 | 1921 | 1922 | 1923 | |
| Mrs. E. H. Coleman | 5793 | $25.83 | ||||
| E. H. Coleman | 5794 | $11.60 | $31.65 | 25.83 | ||
| Mrs. J. F. Coleman | 5795 | $28.25 | $94.67 | 26.79 | 68.62 | |
| J. F. Coleman | 5796 | 230.95 | 94.67 | 26.79 | 68.62 |
The proceedings were consolidated for the purpose of hearing and decision.
Two questions are presented. First, whether the respondent erred in including in the gross income of the petitioners their distributable portions and community interests in the compensation received by the J. F. Coleman Engineering Co. as compensation from the Board of Commissioners of the Port of New Orleans. Second, whether J. F. Coleman and his wife were citizens and residents of the State of Louisiana during 1919. The respondent in his brief conceded*3841 that the evidence established the fact that the petitioners were citizens and were domiciled in the State of Louisiana.
FINDINGS OF FACT.
On November 3, 1920, J. F. Coleman Engineering Co. was engaged as consulting engineers of the Board of Commissioners of the Port of New Orleans in accordance with the minutes and resolution of the Board on that date as follows:
*246 Extract from Minutes, Board of Commissioners of the Port of New Orleans, Special Session, Held November 3, 1920.
President W. O. Hudson reported that in accordance with directions of the Board he had interviewed Mr. J. F. Coleman with a view of having him serve the Board in an engineering capacity; that Mr. Coleman had explained that large commitments with his clientele would preclude the possibility of his devoting his entire time to the Board. However, his firm, the J. F. Coleman Engineering Company, composed of his son and himself, would be pleased to serve the Board as Consulting Engineers in charge of the Engineering Department, and he (President Hudson) stated that it would be his recommendation to employ the J. F. Coleman Engineering Company, they to have entire charge of the Board's Engineering*3842 Department.
Whereupon -
Commissioner McCloskey moved, seconded by Commissioner Kernaghan, and adopted:
That the foregoing recommendation of President W. O. Hudson be, and is hereby, approved; and the J. F. Coleman Engineering Company be, and they are hereby, elected Consulting Engineers in complete charge of the Board's Engineering Department, at a salary of $6,000.00 per annum, effective this date (November 3rd, 1920).
The J. F. Coleman Engineering Co. is and was during the years 1920, 1921, 1922, and 1923, a partnership composed of J. F. Coleman and E. H. Coleman.
The J. F. Coleman Engineering Co. received compensation from the Board of Commissioners of the Port of New Orleans for services performed under and in accordance with the terms of the resolution as follows: For 1920, $966.66; for 1921, 1922, and 1923, $6,000 per year.
The position of consulting engineers for the Board of Commissioners of the Port of New Orleans was not a position created by statute. No oath of office was required for the position of consulting engineers and no oath was taken. With respect to the Board of Commissioners the constitution of Louisiana, in article 6, section 16, provides as*3843 follows:
The Board of Commissioners of the Port of New Orleans shall, except as herein otherwise charged and amended, have and exercise all power now conferred upon it by the Constitution, and such other authority as may be conferred by the Legislature.
The Legislature of Louisiana, in Act No. 14 of 1915, gave to the Board of Commissioners the power to enact ordinances, to provide penal punishments and to conduct criminal prosecutions for the violation of its ordinances in the district courts of the Parish of Jefferson and the Parish of St. Bernard, and in the recorders courts of the City of New Orleans.
The Board of Commissioners was created and its powers defined by Act 70 of the state legislature in 1896. This act was subsequently amended and certain powers were given it by constitutional amendment *247 and its powers recognized in the constitution of 1921. It was vested with power to regulate commerce and traffic of the port and harbor; to have charge of and administer the public wharves and landings; to construct new wharves; to erect sheds on wharves and landings; to maintain sufficient depth of water to provide for loading and policing; to collect fees from*3844 vessels using the harbor and facilities; to purchase or otherwise acquire property, wharves, or landings necessary for the benefit of the commerce of the port and harbor. Its membership is composed of five citizens appointed by the Governor of Louisiana to serve without pay.
OPINION.
TRAMMELL: The respondent, having conceded that Mr. and Mrs. J. F. Coleman were residents of and domiciled in the State of Louisiana, the only question remaining to be decided is whether the distributive shares of the partnership in the compensation received from the Board of Commissioners of the Port of New Orleans is exempt from taxation. The petitioners contend that the said compensation is exempt because the J. F. Coleman Engineering Co. is an employee of a "subordinate branch of the State of Louisiana."
The petitioners assert that the Board of Commissioners of the Port of New Orleans is a branch or arm of the State government and that the engineering company was an employee of that body.
The evidence introduced by the petitioner in this case was very meagre. It consisted only of an extract from the minutes of the Board of Commissioners of the Port of New Orleans, a handbook prepared by*3845 said board, and certain admissions and stipulations made at the hearing.
We were not advised as to the nature of the duties to be performed by the partnership or by the individual members thereof. The record does not reveal to what extent, if at all, their services were subject to the direction or control of the Board of Commissioners, to what extent the performance of their services involved the use of judgment and discretion on their part, what liberty of action they had, or other facts from which we can determine whether the petitioners were employees of the State or a political subdivision thereof.
The very facts which were lacking, as pointed out by the Supreme Court in the case of , are lacking here. The court in that case said:
Nor do the facts stated in the bill of exceptions establish that the plaintiffs were "employees" within the meaning of the statute. So far as appears, they were in the position of independent contractors. The record does not reveal to what extent, if at all, their services were subject to the direction or control of the public boards or officers engaging them. In each instance the*3846 performance of their contract involved the use of judgment and discretion on their part and *248 they were required to use their best professional skill to bring about the desired result. This permitted to them liberty of action which excludes the idea that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor. [Citations.]
* * *
But here the tax is imposed on the income of one who is neither an officer nor an employee of governmnet and whose only relation to it is that of contract, under which there is an obligation to furnish service, for practical purposes not unlike a contract to sell and deliver a commodity. In such a situation it cannot be said that the tax is imposed upon an agency of government in any technical sense, and the tax itself cannot be deemed to be an interference with government, or an impairment of the efficiency of its agencies in any substantial way.
On the record, we determine that the compensation received by the petitioners should be included in their taxable income. *3847 ; ; ; ; .
Reviewed by the Board.
Judgment will be entered on 15 days' notice, under Rule 50.