*52 Decision will be entered under Rule 50.
Upon the facts, held, that J. P. Denison Co. did not constitute a valid partnership between petitioner and his wife for tax purposes during 1942 and 1943, and that all of its net income for those years is includible in the income of petitioner.
*686 In this case the Commissioner determined a deficiency of $ 27,591.89 in the income and victory tax paid by petitioner for the taxable year ended December 31, 1943. Since the taxable year 1943 is in issue, the *687 income tax liability of petitioner for the taxable year 1942 is also involved, due to the forgiveness feature of the Current Tax Payment Act of 1943. The only question is whether the Commissioner erred in holding that the entire net income of J. P. Denison Co. during the calendar years 1942 and 1943 was taxable to petitioner instead of being distributable and taxable one-half to him and one-half to his wife in accordance with their partnership agreement. All the other issues raised by petitioner's assignment of error were settled by stipulation of the parties*53 and will be given effect under Rule 50. The Federal income and victory tax returns of petitioner for the years 1942 and 1943 were filed with the collector of internal revenue for the district of Michigan, at Detroit.
FINDINGS OF FACT.
During the taxable years 1942 and 1943 petitioner Denison was a resident of Royal Oak, Michigan. After completing two years of high school, petitioner started to work. During his first years of employment he worked for various manufacturers in the Detroit area, performing clerical services principally. Then he secured a position with Universal Cooler Corporation, a Detroit concern engaged in selling refrigerators. By the summer of 1940 petitioner had served approximately six years with this company, and during the last three of these years petitioner acted as its purchasing agent and became acquainted with manufacturers and suppliers in the Detroit area.
In 1930 petitioner married the present Mrs. Denison and they made their home in Detroit. She had graduated from high school and worked for several years as a general clerk. By 1940 the Denisons had three children, so that Mrs. Denison was fully occupied as a housekeeper in the summer of 1940.
*54 During May 1940 it became definitely known that Universal Cooler Corporation would move to Marion, Ohio, a town approximately 150 miles away. The removal of the company plant to Marion necessitated that petitioner and his family move there if he was to continue in his present employment. Petitioner was most reluctant to give up his job despite the disadvantage of leaving Detroit. On the other hand, Mrs. Denison was very opposed to the move, and she determined to find a means to avoid changing their residence. As an alternative to leaving Detroit, Mrs. Denison suggested to petitioner that he give up his position with Universal Cooler Corporation and that they go into the business of manufacturers' agent in Detroit. For some time petitioner did not regard this suggestion with favor and was agreeable to adopting it only if he could be convinced such a change was economically feasible.
*688 To convince her husband of the practicality of her plan, Mrs. Denison arranged a dinner at their home in July 1940 whereby petitioner met one Matley, purchasing agent for Whitman & Barnes Co., and one Peters, purchasing agent for Detroit Harvester Co. Mrs. Denison's friendship with the wives*55 of these potential customers made this meeting possible, for petitioner had not previously known them. When told that the Denisons were considering entering the business of manufacturers' agent together, Matley and Peters indicated that they might be willing to place their orders with the Denisons.
Petitioner then contacted various concerns engaged in the production and sale of manufacturers' supplies with whom he was acquainted as purchasing agent for Universal Cooler Corporation. Denison satisfied himself that arrangements could be worked out for him to represent these concerns in the sale of their products.
Next the Denisons began looking for an office in which they could operate with minimum expense. They revealed their plans to a mutual friend, Schroeder, who had an office in downtown Detroit. An agreement was reached whereby the Denisons might have the use of a desk and telephone in Schroeder's office, rent-free; in return it was agreed that Mrs. Denison would answer the telephone and do a little clerical work for Schroeder.
After these preliminary inquiries revealed the practicality of Mrs. Denison's suggestion, petitioner determined to undertake the venture of manufacturers' *56 agent with the assistance of his wife. On July 31, 1940, their sole financial resources consisted of petitioner's car, a mortgaged house, a few stocks owned by each of them separately, a $ 428.19 deposit in their joint checking account, and petitioner's salary of $ 375 per month from Universal Cooler Corporation.
Upon advice of friends that a partnership agreement should be executed if they were going in business together, the Denisons instructed an attorney to draw one up, which they together signed in his office on August 3, 1940. Denison considered the agreement was a license necessary for going into business with his wife. They thereby agreed to become copartners and conduct the business as a copartnership under the name of J. P. Denison Co. for a 10-year period commencing September 2, 1940. They further provided for equal contributions of capital and sharing of profits and losses. The partnership activities spelled out in the agreement were general in nature, consisting of the building, manufacture, and sale of machinery and mechanical tools and the allied operations incidental to attaining these purposes.
Shortly after the execution of this agreement, J. P. Denison Co. *57 began efforts in the Schroeder office to establish contacts for future business, though petitioner retained his position with Universal Cooler Corporation.
*689 In August 1940 Universal Cooler Corporation actually moved its plant to Marion, Ohio, and petitioner continued in its employ there until December 31, 1940. In order not to conflict with his employment with Universal Cooler Corporation, petitioner did not actually make any sales in the name of J. P. Denison Co. during the remainder of 1940, but confined his activity to making business connections for use after January 1, 1941. He returned to Detroit on most week ends and used the time at home and in the office contacting prospective customers and suppliers whom he had come to know as purchasing agent for Universal Cooler Corporation.
For the remainder of 1940 Mrs. Denison went to the office of J. P. Denison Co. every day, where she performed general clerical work and answered the telephone for both Schroeder and petitioner. To give petitioner's wife the time to devote to company affairs, a full time servant was hired to take care of the home and the children. During the week while petitioner was working in Marion, Mrs. *58 Denison was the sole representative of J. P. Denison Co. in Detroit.
Though J. P. Denison Co. was in existence during the fall of 1940, it consummated no sales as a manufacturers' agent for the balance of the year. Consequently, the firm receipts received over this period were negligible. No bank account was opened in its name, and no partnership tax return was filed that year.
Starting January 1, 1941, petitioner left his job with Universal Cooler Corporation and henceforth devoted his full time to his independent business. An assumed name certificate showing Denison to be the sole owner and operator of the business using the name of J. P. Denison Co. was filed by petitioner on January 13, 1941. At this time J. P. Denison Co. started to actively represent manufacturers' supply companies as a manufacturers' agent.
During the period from January to September 1941 the operation of J. P. Denison Co. required a negligible amount of capital and fixed assets, since it consisted of selling products for suppliers on a straight commission basis. The main expenses of such a business, office rent and telephone, were provided free until Schroeder moved to another office in August. Services*59 performed by the husband rather than capital were responsible for the firm's income over this period. Petitioner spent his time during 1941 personally traveling around the countryside soliciting customers and accounts, placing orders, and following up the accounts obtained to make sure they were properly executed. At all times he was in sole charge of the company's business activities. Mrs. Denison continued to work every day in the office as a clerk, without compensation. In January 1941 a bookkeeper was hired to handle the firm accounts, since neither petitioner nor his wife understood the principles of accounting.
*690 On March 5, 1941, the Denisons drew out the balance of $ 875.06 in their joint checking account and transferred it to an account opened in the name of J. P. Denison Co. The signature card stated that the undersigned, John Denison, was the sole proprietor of the business. It authorized the bank to honor checks upon the signature of either himself or his wife. In the space provided thereon for the signature of all copartners or sole proprietor appeared only the signature "John Denison." There is no evidence that Mrs. Denison ever drew checks upon this account.
*60 Among the business entities for which J. P. Denison Co. acted as a manufacturers' agent was Bangor Products Co. In August or September 1941 Bangor Products Co. objected to the delay in payment on products it was selling to Detroit Harvester Co. and Universal Cooler Corporation and threatened to discontinue such sales. In order not to lose two of its best accounts, J. P. Denison Co. agreed to purchase the supplies and in turn sell them to these manufacturers. With the consent of Bangor Products Co. the name of the firm was changed, so far as the Bangor account was concerned, from J. P. Denison Co. to Bangor Products Co. for the convenience of old customers. All of the income derived from such transactions handled under the name of Bangor Products Co. was treated as a part of the income of J. P. Denison Co. In this connection an assumed name certificate for Bangor Products Co. was filed by petitioner on October 28, 1941. It stated that Denison was the sole owner and operator of this business.
The new arrangement for marketing Bangor products required capital, since J. P. Denison Co. had to pay for these supplies before it received the sale price from Detroit Harvester Co. or Universal*61 Cooler Corporation and the time interval was usually from 60 to 90 days. To meet the urgent need for funds petitioner sold his own stocks at a loss for approximately $ 350 and contributed the proceeds to the firm. Mrs. Denison also owned stocks bought with savings she earned prior to her marriage. She endorsed her stock certificates and turned them over to her husband, who sold them at a loss for approximately $ 1,350 and deposited the proceeds in the firm's bank account. All of these securities were credited to petitioner on the company journal.
As the result of the changed method of handling the Bangor account, profits were tripled and for the remainder of the year the purchase and resale of Bangor products constituted the largest portion of the firm's business. From this point forward commissions received as a manufacturers' agent formed only a small portion of J. P. Denison Co.'s gross income.
Near the close of 1941 J. P. Denison Co. began another line of business, the placing of tool and die orders. Large manufacturing concerns needing tools and dies placed their orders with the company, *691 which in turn farmed them out to small tool shops. J. P. Denison Co. bought*62 such products at a set price and then resold them to the large manufacturers. This enterprise required the use of substantial amounts of capital, both because it required J. P. Denison Co. to advance cash to these tool shops in order to finance their operation during production and because the company was required to pay for the tools and dies before payment was received from the ultimate purchaser. Since completion of these orders customarily took 8 to 16 weeks, J. P. Denison Co. had its own capital invested in these products for that period of time.
The business records of J. P. Denison Co. and Denison's income tax return for 1941 reflected a sole proprietorship in petitioner rather than a partnership between husband and wife. The firm's profit and loss account showed a balance of $ 18,795.19 on December 31, 1941, all of which amount was transferred to the personal account of petitioner on that date. No drawing account or capital account for Mrs. Denison appeared on the company books. No partnership tax return for J. P. Denison Co. was filed. Petitioner's income tax return, prepared by an accountant, reported gross receipts from the company in the amount of $ 44,066.93 and*63 included the firm's total net income of $ 15,629.96 in petitioner's income. Denison took a deduction for the long term capital losses on all the stock sold by him the previous fall to provide capital for the company. Mrs. Denison filed no tax return.
During the war years 1942 and 1943 the volume of J. P. Denison Co.'s business increased sharply. The placement of tool and die orders accounted for most of the firm's rising income. In August 1943 the firm commenced manufacturing tools and dies itself and then selling them to customers. Capital in the amount of approximately $ 25,750 was required to purchase the necessary machinery and equipment. The machine tool business was carried on under the name of Detroit Machine Products Co. but the income was included in that of J. P. Denison Co. By the end of 1943 sales of Detroit Machine Products Co. equaled one-seventh of the total sales of J. P. Denison Co. for the year. Thus in 1942 and 1943 the firm business consisted almost entirely of either the purchase from others and the resale of tools, jigs, dies, and fixtures or the manufacture and sale of such products. Capital was a vital factor in these enterprises, though no inventory*64 was ever used and fixed assets consisted only of office furniture, a car, and the machinery bought for Detroit Machine Products Co. Commissions received as a manufacturers' agent continued to be insignificant. In these years, as before, Detroit Harvester Co. and Whitman & Barnes Co. remained leading customers.
Throughout 1942 and 1943 Denison's services continued to be vital in the successful rise of the company, but Mrs. Denison's services *692 were no longer a measurable factor. During these years petitioner remained in sole charge of all phases of J. P. Denison Co.'s business activities. He also continued to solicit customers and place their orders, though he was now aided by three salesmen. Mrs. Denison's clerical services were no longer performed on a regular basis, for employees had been hired to handle office matters. Principally, she filled in when clerks were sick or on vacation. In 1942 she averaged two days a week at the office and gradually less in 1943.
On December 31, 1942, an entry on the company journal, effective January 1, 1942, first reflected a partnership status between petitioner and his wife in the conduct of J. P. Denison Co. This entry transferred*65 half of the capital, in the amount of $ 12,633.20, from petitioner's account to his wife. As a consequence, the audit statement of J. P. Denison Co. for 1942 and 1943 and of Detroit Machine Products Co. for 1943 credited equal amounts of capital and income to petitioner and his wife.
Partnership tax returns were first filed for J. P. Denison Co. in 1942 and a similar return was filed in 1943. On the back of both returns petitioner stated that the partnership commenced on January 1, 1942. Gross receipts of $ 300,018.75 and $ 267,381.66 were reported in 1942 and 1943, respectively. Net income of $ 29,927.26 for 1942 and $ 51,768.65 for 1943 were reported as distributable one-half to petitioner and one-half to his wife.
Denison's 1942 income tax return included $ 14,963.63 as distributable income from J. P. Denison Co. and his 1943 return stated that $ 25,887.33 was his share of the firm's income.
Mrs. Denison first filed a tax return in 1942. She declared her occupation to be that of "House wife." In both 1942 and 1943 she reported the same amount of income distributable to her from J. P. Denison Co. as her husband had included on his returns.
Only a negligible amount of the income*66 of J. P. Denison Co. was ever actually distributed to petitioner or his wife; petitioner allowed it to accumulate to finance the expanded operations of the firm.
Before September 1941 the income of J. P. Denison Co. was due exclusively to personal services, but thereafter in 1941, 1942, and 1943 capital was a material income-producing factor.
Mrs. Denison did not invest capital in the firm or contribute to its management. The services of measurable value which she performed were confined to 1940 and 1941.
Neither petitioner nor his wife intended to conduct J. P. Denison Co. as a bona fide, working partnership at any time.
OPINION.
The sole question in this case is whether on the facts and under applicable rules of law there was during the taxable years *693 1942 and 1943 a valid partnership between petitioner and Mrs. Denison. The law is clear that it is possible for a husband to form a partnership with his wife which will be recognized for tax purposes. ; . Therefore it is a question of fact whether Denison and Mrs. Denison intended*67 to operate J. P. Denison Co. as a bona fide partnership or whether Mrs. Denison was a partner in form only. We must determine their intent by examining all the circumstances surrounding the partnership agreement of August 3, 1940, the terms of this agreement, and the conduct of the Denisons subsequent to its execution.
It is clear that in August 1940 Mrs. Denison succeeded in persuading her husband to give up his position with Universal Cooler Corporation and to undertake the business of selling machinery and tools as a manufacturers' agent. J. P. Denison Co. was established for that purpose in September. It is also apparent that Denison and Mrs. Denison contemplated going into the new enterprise together, but there is no sound basis in the evidence for judging the intended status of petitioner's wife in this venture until 1941, when the company first actually engaged in representing manufacturers' supply companies. We recognize that upon advice of friends petitioner and Mrs. Denison did execute an agreement on August 3, 1940, which provided for the creation of J. P. Denison Co. as a full-fledged partnership between them. Yet there is nothing to indicate that at that time petitioner*68 actually intended to carry on the business of manufacturers' agent under the terms of this agreement. Petitioner's testimony that he considered the agreement to be a license necessary for going into business with his wife implies that he considered the instrument to be a mere formality. Such a conclusion is fortified by the fact that the activities spelled out in the agreement do not even mention the possibility of operating as a manufacturers' agent.
The manner in which the affairs of J. P. Denison Co. were conducted in 1941 makes plain petitioner's intent to run it as a sole proprietorship rather than in partnership with his wife. Every formal manifestation of the firm's existence during that year points to the fact that Denison was operating the business in complete disregard of the partnership agreement. On the assumed name certificates for both J. P. Denison Co. and Bangor Products Co. petitioner stated that he was the sole owner and operator of the business. When a bank account was opened in the name of the firm, petitioner made a similar statement on the signature card. While the bank was authorized to honor checks upon his wife's signature, there is no proof that she*69 ever exercised the privilege. Nor is there any evidence that business concerns dealing with the firm were ever apprised of its partnership status. The company *694 books for 1941 also reflect a sole proprietorship. The full balance in the profit and loss account for the year was transferred to the personal account of petitioner. No drawing account or capital account for Mrs. Denison was entered in the company records. That petitioner did not understand the intricacies of accounting does not detract from the significance of this evidence, for his testimony reveals a familiarity with the company books which negatives ignorance of their content. Certainly if the firm's bookkeeper had been informed of a partnership status she would have reflected it in her entries. Finally, in tax matters, J. P. Denison Co. was treated as a sole proprietorship in 1941. No partnership return was filed for it that year. Petitioner does not successfully explain this failure by testifying he was completely ignorant of such returns. Had he intended to operate the company on a partnership basis Denison, as an experienced businessman, would certainly have inquired into the tax consequences. Petitioner*70 on his tax return included all the firm's net income for that year. Surely the accountant who prepared this return was not informed that J. P. Denison Co. constituted a partnership. Mrs. Denison filed no return whatsoever for 1941. All these facts together conclusively show that at the end of 1941 no working partnership existed between petitioner and his wife.
Petitioner reaches an opposite conclusion on the basis that Mrs. Denison contributed such capital and services to the firm in 1941 that she qualified as a partner according to the familiar tests laid down in We found as a fact that capital was a material income-producing factor after September 1941, but that she made no contribution of capital originating with her to J. P. Denison Co. While the balance in the joint bank account of petitioner and his wife was transferred to an account opened for J. P. Denison Co. in March 1941, yet the evidence fails to reveal what, if any, portion of this capital originated with Mrs. Denison. In all events, the firm received these funds at a time when personal services rather than capital were the income-producing factor. *71 Petitioner contends that the proceeds from the sale of Mrs. Denison's stocks in the fall of 1941 constituted a capital investment on her part. No written instrument accompanied the transfer of her stock certificates to petitioner from which the intent of the parties may be judged. The manner in which the proceeds were treated by the parties furnishes a surer guide to the Denisons' intent than their self-serving testimony that she was making a capital contribution. Mrs. Denison simply endorsed the certificates over to her husband, who actually sold them and deposited the proceeds in the firm's bank account. On the company journal all the stock is credited to him. He took the deduction for the capital loss arising from their sale. These facts are only consistent with ownership of the securities by Denison and a capital contribution on his part.
*695 While under the authority of the Tower case Mrs. Denison's valuable services in 1940 and 1941 suggest a partner's status, yet they are not decisive, but only one consideration, in the ultimate determination of whether there was a genuine, bona fide partnership. .*72 Their force is more than offset by the many facts we have considered pointing in the opposite direction. When her work is viewed in the light of widespread manifestation of petitioner's intent to conduct J. P. Denison Co.'s affairs as a sole proprietorship, we conclude that Mrs. Denison's services constituted not the contribution of a partner, but loyal assistance rendered by a wife to help her husband get started in his business.
The evidence reveals no change in petitioner's treatment of the firm as a sole proprietorship until early in 1943, when the company bookkeeping records for the previous year were closed out and tax returns for 1942 were filed. Then for the first time an attempt was made by petitioner to give J. P. Denison Co. the veneer of a partnership. An entry on the company journal dated December 31, 1942, effective as of January 1, 1942, transferred half of the firm's capital to Mrs. Denison. A partnership return was filed in the name of J. P. Denison Co. for the first time and the net income was reported as distributable half to petitioner and half to his wife. It is noteworthy that, in his belated effort to give formal recognition to his wife as a partner, petitioner*73 still ignored the partnership agreement of August 1940, for the partnership return for 1942 states that the partnership commenced January 1, 1942, and the same declaration was made in the return for the following year. This constitutes a frank admission by the petitioner that prior to 1942 the company was a sole proprietorship. Mrs. Denison filed a tax return for the first time in 1942 and, like her husband, reported half of the company's net income distributable to her. J. P. Denison Co.'s books and the tax returns filed in 1943 reflected the new role of partner assigned to Mrs. Denison.
Despite these formal evidences of a partnership displayed in 1943, petitioner in substance and reality continued to conduct the activities of the firm as a sole proprietor. He entered into no partnership agreement with his wife on January 1, 1942, or thereafter. The large gross profits realized in 1942 and 1943 were due solely to petitioner's management, services, and prior contribution of capital. He retained absolute command over the use of the firm's assets and income. Mrs. Denison failed to fulfill any of the tests announced in ,*74 as criteria of a partnership status in the wife. There is no contention that she invested funds in J. P. Denison Co. during 1942 or 1943 or that she exerted the slightest influence in the management of its affairs. Petitioner concedes that the transfer of half of the firm's capital to her account on December 31, 1942, was ineffective as *696 a contribution of capital originating with her. We find no validity in the argument that she performed vital additional services during these years. The fact is that she came to the office only a few times a week to help out when regular employees were sick or on vacation. On her 1942 return Mrs. Denison listed her occupation as "House wife," showing that she considered her work for the company to be of secondary importance. Under the circumstances it is clear that the services of petitioner's wife were insignificant as an income-producing factor. ; affd., ; ; affd., ; .*75 We conclude that there was no basis in substance for the formal partnership status assigned Mrs. Denison.
We can find no true business purpose to account for the partnership robes in which J. P. Denison Co. was suddenly cloaked in 1943. Every phase of the firm's operation continued thereafter, as before, to bear the imprint of a sole proprietorship in Denison. An adequate motive for the formal recognition finally given Mrs. Denison as a partner can be found in petitioner's desire to reduce his own taxes. The sharp rise in the gross receipts and net income of J. P. Denison Co. between 1941 and 1942 and the prospects of even higher earnings in 1943, due to heavier wartime demands, furnish the key to petitioner's purpose in changing the status of J. P. Denison Co. In such a situation, where the sole owner of an established business resorts to a family partnership in order to avoid the surtax on high profits, and it is plain the wife is a mere figurehead, the courts have not hesitated to hold the partnership ineffective for tax purposes. ;; .*76 The mere fact that partnership form was observed in 1943, when unaccompanied by any corroboration in the actual conduct of J. P. Denison Co., does not persuade us of the parties' intent to carry on business as partners.
We conclude that the Commissioner was correct in his determination that for Federal tax purposes J. P. Denison Co. did not constitute a valid partnership between petitioner and his wife during 1942 and 1943.
Decision will be entered under Rule 50.