*2003 A wife's compensation for personal services, where an agreement exists between herself and her busband under the laws of the State of California that such compensation shall be her separate income and separate property, and where she has made separate income-tax returns, may not be added to and taxes as income of the husband.
*932 This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1924 in the amount of $3,878.03. The deficiency arises from the action of the respondent in including in petitioner's income the amount of $12,000, representing salary paid to petitioner's wife during the taxable year.
FINDINGS OF FACT.
The petitioner is and was during the year 1924, and prior thereto, a married man residing with his wife in San Francisco, Calif. He was the president of a corporation known as the Wisconsin Furniture Co., and his wife was the secretary of that company for several years prior to and including the year 1924. As secretary she received from the corporation an annual salary*2004 of $12,000.
During all the years that the petitioner's wife has received said salary as secretary, including the year 1924, it has been considered her separate income by both herself and the petitioner. By mutual and continuing agreement between them the petitioner relinquished all claim to his wife's salary and has never received, nor had any control of or benefit from such salary. Mrs. Davis has at all times used the money so earned by her in such manner and for such purposes as she saw fit, free from any control or dominion by the petitioner. She made investments, bought an automobile and otherwise used the salary she received entirely as her own property and at all times has had full possession and control of said money pursuant to the agreement with her husband.
The petitioner and his wife made separate income-tax returns for the year 1924. Mrs. Davis reported her salary of $12,000 as income and paid taxes upon it. The petitioner did not include his wife's salary as part of his income. Upon audit of the return the respondent added $12,000 to the petitioner's taxable income and asserted the present deficiency, upon the theory that that amount was a gift by the petitioner*2005 to his wife and was not her separate income.
OPINION.
MARQUETTE: The exact issue involved in this proceeding was presented to us by the present petitioner for the year 1922 in . We there held that the compensation received by the petitioner's wife from the Wisconsin Furniture Co. was not taxable to her husband because there existed a definite agreement between them that her salary should be her separate property. The status of Mrs. Davis' salary was the same in 1924 as it had been in 1922.
It is clear that husband and wife may, under California law, enter into an agreement whereby the wife's earnings will not become community *933 property, and where such an agreement exists, the salary received by the wife is her separate property. Section 158, Civil Code of California; ; ; . Such an agreement existed between the petitioner and his wife with respect to her salary for 1924.
We are of the opinion that the decision in *2006 , is sound and is decisive of the present inquiry. We therefore hold that the salary in question is not taxable to the petitioner. See also ; , and .
Judgment will be entered under Rule 50.