*4110 The petitioner's share of partnership profits which was paid to his partner in consideration for said partner's interest in the business was taxable to the petitioner and was property included in the computation of his net income by the respondent.
*399 This is a proceeding for the redetermination of deficiencies in income taxes for the years 1920 and 1921 amounting to $957.93 and $426.02, respectively.
The questions presented for our consideration are:
1. Whether the respondent improperly included in the petitioner's income for the years 1920 and 1921 the sums of $8,306.30 and $2,636.05, respectively, representing one-half of the income of the partnership of Hill Brothers for the period May 1, 1920, to May 1, 1921;
2. Whether the respondent incorrectly included the sum of $305.43, representing Liberty bond interest, in the computation of the petitioner's income for 1920; and
3. Whether the respondent erred in failing to credit the amount of the deficiency for 1920 with $52.31, representing additional tax previously paid by the petitioner.
*4111 FINDINGS OF FACT.
The petitioner is a resident of the City of Wheeling, W. Va., and dentist by profession. In May, 1900, he became associated with his brother Charles L. Hill, at or about which time it was orally agreed between them to divide the profits derived from their joint efforts, two-fifths to the petitioner and three-fifths to his brother *400 Charles, which agreement was modified in or about the year 1907, when it was agreed that the profits should be divided equally. At this time Charles was in poor health and was devoting only a few months in each year to the partnership until 1910. After 1913 he did not devote any time to the practice of dentistry. Charles always left the conduct and management of the partnership entirely to the petitioner. The partnership owned certain instruments necessary in the profession of dentistry which were purchased from time to time out of the earnings of the business.
The petitioner desiring to discontinue the partnership relations existing between himself and his brother, on April 26, 1918, entered into the following agreement with his brother Charles:
THIS AGREEMENT, Made this 26th day of April, 1918, by and between George*4112 L. Hill, party of the first part, and Charles L. Hill, party of the second part, WITNESSETH,
WHEREAS, the said parties have heretofore, as partners, conducted dental parlors at 1049 Main Street, of the City of Wheeling, Ohio County, West Virginia, and,
WHEREAS, they desire to fix a time at which said partnership may end, and also have agreed on certain conditions and provisions with reference to the management of said business and the compensation of the parties hereto.
Now THEREFORE, the said parties have mutually agreed with each other as follows, to-wit: The partnership heretofore conducted by the said parties, under the name of Hill Bros., shall be continued by them under the same name and at the same place, until the First day of May, 1921. The said George L. Hill shall continue the active manager and head of said business, and shall attend to all things necessary for the accomplishment of the purposes of the said dental business, and shall devote all his time and attention thereto. He shall pay out of the proceeds of said business the expenses of said office, incident to the carrying on of said business, which expenses shall also include thr rent thereof, during the*4113 continuance of this partnership. Out of the net proceeds of said business, after paying said expenses, the said George L. Hill and the said Charles L. Hill shall each receive and be paid fifty per cent (50%) of said net proceeds; settlement shall be made by the said George L. Hill with the said Charles L. Hill at the end of each six months after the First day of May, 1918, that is to say: the first settlement shall be made on the first day of November, 1918, and each six months thereafter, until the winding up of this partnership. It is hereby expressly agreed that neither of said parties shall receive any other or further compensation out of said business, except as hereinbefore provided.
It is hereby expressly agreed that the lease of said premises at 1049 Main Street, procured from Caroline Knote, in the name of George L. Hill, dated the 11th day of March, 1918, for a period of five years, which lease is recorded in Deed Book No. 161, at page 133, in the Clerk's office of the County Court of Ohio County, West Virginia, was procured for the benefit and use of said partnership, and that the same shall be and continue the property of this partnership during the time that it is*4114 to continue as aforesaid, and that at the end of the three year period herein provided for, the said George L. Hill shall *401 assume the payment of all rent due upon said lease after the First day of May, 1921.
The said Charles L. Hill shall not be required to devote any time to the business aforesaid, except such as he may at his pleasure and convenience devote thereto.
It is hereby agreed that in the event that any controversy arises between the parties hereto in said business, or under this contract, said controversy shall be settled by arbitration, in the event that said parties cannot agree. The said arbitration shall consist of three persons, two of such persons to be selected one by each of the parties hereto, and the third to be selected by the two thus chosen; and the decision of any two of said arbitrators shall be binding upon the parties hereto.
At the end of the period provided by this agreement, to-wit, May First, 1921, the said George L. Hill hereby agrees that he will purchase all of the property, of every kind and description, used in connection with said business, and that he will pay the said Charles L. Hill for his interest in said property, as*4115 follows, to-wit: In addition to the fifty per cent (50%) of the net proceeds of the business for the year made up of a period from May First, 1920, to May First, 1921, the said George L. Hill, hereby agrees to pay to the said Charles L. Hill, for the said property and the good will of said business all of the balance of the net proceeds of said business for said year, that is to say: the said Charles L. Hill, for his interest in said partnership, and as a consideration for all of his property used in said business and the good will of said business, shall receive the total proceeds of said business for the year beginning May First, 1920, and ending May First, 1921. Upon the payment of said money last provided for, the said Charles L. Hill shall execute and deliver to the said George L. Hill a Bill of Sale transfering all his right, title and interest in and to said property.
The provisions hereinbefore provided shall apply to the heirs, executors, and administrators of the parties hereto. In the event that either of the parties hereto should die before the end of this partnership, the same shall be continued until the First day of May, 1921, and the terms of this agreement shall*4116 apply and settlement made, as herein provided, with the personal representative of the deceased partner.
WITNESS the following signatures and seals:
(Signed) George L. Hill (Seal)
(Signed) Charles L. Hill (Seal)
(Executed in duplicate)
The petitioner received 50 per cent of the partnership profits for the first two years of the life of the above agreement, and in accordance with the terms of the eighth paragraph thereof, his brother received all the profits from the partnership for the period beginning May 1, 1920, and ending May 1, 1921.
The total profits earned by the copartnership for the period May 1, 1920, to April 30, 1921, were $21,884.71, of which the petitioner's share was one-half, or $10,942.35. The respondent held that the petitioner's share of the partnership profits was taxable to him, notwithstanding those profits were paid to his brother Charles, for *402 the reason that the payment was made for Charles' interest in the partnership.
OPINION.
MORRIS: The first question urged by the petitioner is whether the respondent incorrectly included the sums of $8,306.30 and $2,636.05 in the computation of the petitioner's net income for the years 1920*4117 and 1921, respectively.
Section 218(a) of the Revenue Acts of 1918 and 1921 provides:
That individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year * * *.
The petitioner contends that no partnership existed for the period May 1, 1920, to May 1, 1921, and then resorts to the ingenious argument that the petitioner made a figt to his brother of an interest in the profits and not of the profits as such.
From 1900 until 1918 the petitioner and his brother Charles were partners under an oral agreement dividing the profits, in the beginning two-fifths to the petitioner and three-fifths to his brother, and later in equal proportions. In 1918, it being the desire of the parties to limit the life of the partnership, an agreement was entered into, continuing the distribution of profits in equal proportion, and providing that the partnership continue until the first day of May, 1921. There was contained in that agreement a provision for the sale of*4118 the interest of Charles L. Hill in the partnership to the petitioner, in consideration for the petitioner's share of the net proceeds of the business for the period May 1, 1920, to May 1, 1921. That provision of the agreement says in part, "the said Charles L. Hill, for his interest in said partnership, and as a consideration for all his property used in said business and good will of said business, shall receive the total proceeds of said business for the year beginning May First, 1920, and ending May First, 1921."
In that agreement there is repeated reference to the partnership theretofore existing and it is expressly provided that "the partnership heretofore conducted by the said parties, under the name of Hill Bros., shall be continued by them under the same name and at the same place, until the First day of May, 1921." It seems to us that this is a complete answer to the argument of counsel for the petitioner that no partnership existed during the period in controversy. That agreement expressly states that the petitioner will purchase all of the "property" used in connection with said business, and that he will pay therefor his portion of the profits for the period May 1, 1920, *4119 *403 to May 1, 1921. Furthermore, the testimony reveals that the partnership had during its existence purchased out of the partnership profits equipment for the conduct of the dental profession. We, therefore, can not agree with the contention of the petitioner's counsel that there was no salable property that Charles L. Hill could have an interest in.
We are satisfied that the sums of $8,306.30 and $2,636.05 were the petitioner's share of the partnership profits for the period in question and we, therefore, sustain the determination of the respondent with respect to those items.
Since the respondent has admittedly erred in including the sum of $305.43, representing Liberty bond interest, in the computation of petitioner's net income for 1920, the second question presented herein is disposed of on the pleadings.
The petitioner has offered no evidence with respect to the third issue herein and we are unable to determine whether the respondent's treatment of the sum in question was correct or not and, therefore, we sustain his determination as to that issue.
Judgment will be entered on 15 days' notice, under Rule 50.