*933 1. An agreement by spouses, residents of Oregon, to treat all their property as held in community, was ineffective to stamp as community income the husband's share of the profits of a partnership to which he had contributed farm land in Washington, acquired as his separate property.
2. The categorical statement of a member of a partnership that his wife and his partner's wife were also members is inadequate to prove the wives partners.
3. A member of a partnership, who had executed an agreement with his wife to treat all their property as held in community, was not guilty of negligence or willful disregard of regulations in failing to report half of his income even though the agreement did not warrant his treatment of income as community income.
*1068 The Commissioner determined a deficiency of $155.85 and a 5 percent penalty of $7.79 for 1934 in respect of Clark G. Black, and a deficiency of $318.95 and a 5 percent penalty of $15.95 for 1934, and a deficiency of $135.48 and a 5 percent penalty of $6.77 for 1935 in respect of Milton A. Black, *934 adding to their several incomes amounts reported by their wives. The facts were in part stipulated.
FINDINGS OF FACT.
The petitioners are brothers and both residents of Portland, Oregon. Clark G. Black married on November 28, 1900, and Milton A. Black married in 1901, all four being then residents of Pomeroy, Washington. In 1915 Milton and his wife moved to Portland. *1069 In 1919 Clark and his wife moved to Portland. Both couples have since continued to reside there.
Each brother acquired by inheritance from their father, George W. Black, who died intestate on April 28, 1910, an undivided one-fourth interest in 3,400 acres of farm lands in Garfield County, Washington. On November 25, 1931, they acquired from their mother by deed her undivided one-half interest in 2,120 acres thereof, and upon her death on November 13, 1932, they acquired by inheritance heritance her interest in the remaining acres, thus becoming the owners of the entire 3,400 acres.
On October 21, 1933, each petitioner and his wife, in Garfield County, Washington, executed and acknowledged an instrument in identical terms, as follows:
Know all men by these presents, that I, Milton Arthur*935 Black, [Clark Griffin Black] husband, and Mary A. Black, [Minnie Black] wife, for and in consideration of the love and affection we each bear, one toward the other, and further, in consideration of the mutual helpfulness we have been one to the other in the past, and for and in consideration of the commingling of our joint efforts and earnings and properties heretofore, do hereby mutually agree one with the other that every piece, parcel, lot and tract of land, whether situated in the County of Garfield, State of Washington, or elsewhere, and each any every part of the personal property, whether situated in the County of Garfield, State of Washington, or elsewhere, and each and every particle of mixed property wheresoever situated, shall be by us and all other persons whomsoever, deemed, esteemed, regarded, treated and known as community property. In this agreement to made one with the other, the date of acquiring, the manner of acquiring and all statements by either of us heretofore made respecting alleged separate property, or affecting any property, is to be regarded and esteemed as of no effect, the full intent and purpose of this instrument is to be construed by the courts, *936 our heirs, executors and assigns and by all other persons whomsoever, as a voluntary conveyance from one to the other and unitedly to the community all of our earthly possessions in such form and manner that the same shall from this date be the property of the community of ourselves as husband and wife.
Both agreements were recorded in Garfiled County, Washington, on November 1, 1933.
During 1934 and 1935 the 3,400 acres of farm lands were operated by the two brothers as equal copartners under the firm name of M. A. & C. G. Black, the firm having been organized in 1911 by an oral agreement. The lands were tilled by tenants under written leases from year to year, the partnership receiving a share of the crops which it sold. Each brother managed the partnership property in alternate years, and deposited the funds in a partnership bank account in the Bank of Pomeroy. Surplus partnership funds were divided between them and deficiencies were supplied by equal contributions by them. Partnership returns were filed at Tacoma, Washington. Since 1917 the brothers and their wives have filed separate returns.
*1070 Clark G. Black had been a practicing physician in Pomeroy*937 from 1889 to 1909. From the time of his marriage he bought and sold wheat and real estate. He also acquired an interest in a grocery business. Milton owned and operated a drug store in Pomeroy at the time he was married and continued to do so thereafter. The brothers always commingled their earnings with those of their wives, and each couple had a joint bank account in which they deposited their funds without keeping an account of the sources.
In 1911 the partnership acquired a business building in Pomeroy. On the 3,400 acres they constructed five houses and three barns and dug two wells.
The 1934 income of the partnership was $15,046.56, which was distributable equally between the two petitioners. Of this, $11,970.68 was derived from the operation of the aforesaid 3,400 acres.
Clark and his wife filed separate returns for 1934, treating half of the partnership income as their community income.
Milton and his wife filed separate returns for 1934, treating half of the partnership income as their community income.
For 1935 the partnership income was $3,617.68, all of which was derived from the operation of the aforesaid 3,400 acres.
Milton and his wife filed separate*938 returns for 1935, treating half of the partnership income as their community income.
In 1934 Milton received $5,578.40 income from real estate in Washington, and $359.88 from real estate in Idaho. In 1935 he received $5,139.45 income from real estate in Washington, $462.80 from real estate in Idaho, $93.75 from real estate in Oregon, and $2,618.48 from "partnership land sold separately."
Prior to March 15, 1935, the brothers discussed the partnership's return for 1934, and Milton, who prepared the return, took a copy of it to the office of the collector of internal revenue at the customhouse in Portland, inquired as to whether the partnership was entitled to earned income credit of 20 percent, and then completed the return, taking a 20 percent earned income credit.
OPINION.
STERNHAGEN: The petitioners construct their argument as if there were two points, but there are really three - (1) That the agreement of October 21, 1933, gives to the entire income which each derived in 1934 and 1935 the character of community property, thus making one-half taxable to each spouse upon a separate return even though they were all domiciled in Oregon, (2) that all four spouses were equal*939 members of a partnership and separately taxable upon a one-fourth share of partnership income, and (3) that no part of the deficiency of either petitioner was due to negligence, and hence the 5 *1071 percent penalty was erroneously added by the Commissioner.
1. The petitioners were not residents of the State of Washington, and are therefore not in their persons subject to her laws. Nor was their personal property subject to the laws of Washington. Mobilia sequuntur personam. Real property in Washington was subject to Washington law, and could be held in community by agreement of the spouses between themselves, irrespective of their domicil elsewhere. ; ; . But all of the Washington real property here in question was acquired by the two husbands before the agreement of October 21, 1933. The earlier undivided fourth interests in the 3,400 acres were acquired by devise or descent while both couples lived in Washington, and hence were the separate properties of the husbands. Remington's Compiled Statutes of Washington, 1922, §§ 6890-6892. The later*940 interests in 2,120 acres came to the husbands by deed in 1931, and in the rest by devise or descent in 1932, both acquisitions being after the couples had left Washington and become domiciled in Oregon, but before the agreement of October 21, 1933. Hence the entire 3,400 acres was owned as separate property by the husbands when they made the agreement of October 21, 1933.
The agreements purported to convert this separate property of the husbands into community property. In this it may have been successful. But the brothers created a partnership in 1911 and contributed the property to it. This partnership interest, however, was itself personalty and hence it was not subject to Washington law. The agreement was an attempt to import into Oregon as the law controlling the ownership of personal property in that state a kind of tenure not recognized there. In Oregon there is no tenure "known as community property." Accordingly the agreement of October 21, 1933, was ineffective to stamp the income as community income. Milton A. Black owned real property in Oregon and Idaho from which he received income. This he regarded as community property, and therefore included only one-half*941 in his return.
2. Petitioner argues, but only in the alternative, that the wives were members of the partnership and hence were each taxable on a distributable one-fourth share of the partnership income. Even assuming that this question is properly open under the pleadings and is not foreclosed by the stipulated fact that the brothers "as equal co-partners, operating under the firm name of M. A. & C. G. Black, hereinafter referred to as the partnership, operated", etc., we are of the opinion that the evidence is inadequate to prove that the wives were partners. We are not convinced that the categorical statement of C. G. Black, a physician, and primarily interested in his case, can serve by itself to prove that the wives were members of a jural partnership. *1072 It was said to be a partnership organized in 1911 by oral agreement. But there is no evidence of any partnership conduct by the wives. They apparently contributed nothing, took no part in the management, never held themselves out as partners, and shared in the earnings only because their husbands and they used joint bank accounts. *942 ; ; .
We therefore hold that the Commissioner was correct in taxing each of these petitioners on a one-half share of the partnership income, and that none of the income of the petitioners in 1934 and 1935 was the separate income of their wives under the agreement of October 21, 1933.
3. The Commissioner has added to the deficiencies of both petitioners a 5 percent penalty upon the determination that some part of the deficiency is due to negligence or to a willful disregard of regulations. We are unable to find as a fact that there was negligence or willful disregard of regulations to which any part of the deficiency is attributable. The petitioners, being a physician and a druggist, apparently believed that the agreements of October 21, 1933, supported their treatment of their income as community income. While this was erroneous, there was no negligence or any willful disregard of regulations. Nor was there any negligence in their computation of partnership earned income credit. The addition of the 5 percent penalty is*943 reversed.
Decision will be entered under Rule 50.