*796 Petitioner, who was designated county architect by a board of county commissioners, was compensated by the county on the basis of completed work. He maintained his own office, employed his own assistants, and, when not engaged in work for the county, accepted other employment. Held, compensation received from county is not exempt from Federal income tax.
*953 Petitioner in these proceedings contests deficiencies determined by the respondent as follows:
| Year | Amount |
| 1926 | $27,843.27 |
| 1927 | 11,160.40 |
| 1928 | 1,110.08 |
| 1930 | 1,378.48 |
The sole issue is whether certain compensation received by petitioner from Cook County, Illinois, for architectural services rendered is exempt from the Federal income tax.
FINDINGS OF FACT.
Petitioner is an individual and resident of Chicago, Illinois, filing his return and reporting his income on a cash basis.
The following table shows for each of the taxable years in question (1) the total compensation which petitioner received from Cook County, Illinois, *797 for services rendered as an architect; (2) the expenses *954 incurred in performing such services; and (3) the net amounts remaining after deducting such expenses:
| Year | (1) Gross receipts | (2) Expenses | (3) Net receipts |
| 1926 | $303,823.19 | $169,357.08 | $134,466.11 |
| 1927 | 135,219.02 | 69,024.27 | 66,194.75 |
| 1928 | 59,592.47 | 44,342.24 | 15,250.23 |
| 1930 | 32,691.12 | 8,967.96 | 23,723.16 |
Petitioner included in his income tax returns for each of the taxable years the amounts shown in the last column in the above table, but in computing his net income subject to tax, he deducted the same amounts from his total income, on the theory that they were exempt from taxation. The respondent added them to his income for the taxable years, and determined the deficiencies here in controversy.
Petitioner first began performing services as an architect for Cook County - a political subdivision of Illinois - in the year 1915. In February of that year he, "with the advice and consent of the Board of County Commissioners", was appointed by the president of the board to the "office, position or place of employment" of "county architect", and continued as such throughout the*798 years involved in these proceedings. He is the twelfth person to be designated "county architect" since the year 1889, when the first appointment or designation was made.
The "county affairs" of Cook County are managed by an elected board of 15 persons, designated "Board of Commissioners", hereinafter referred to simply as "board." Said board has the same powers, performs the same duties, and is subject to the same rules, regulations, and penalties as are prescribed by law for the board of supervisors in other counties. It has the care and custody of the real and personal property of the county, the power to manage the county, funds and business, to examine and settle accounts against the county, and to cause taxes to be annually levied and collected for county purposes. It also has power to erect and maintain court houses, jails, and other necessary county buildings, a county hospital and necessary branch hospitals for the care of such sick as may be proper charges upon the county, and to establish and maintain forest preserve districts for the education, pleasure, and recreation of the public. In general it has the responsibility, power, and duty of managing all the fiscal*799 and business affairs of the county.
Many of the officers and employees of Cook County are under civil service, appointed from eligible lists certified by the civil service commission, following competitive examinations. Appointments are made by the president of the board, but the salaries or rates of compensation are required to be fixed by the board prior *955 to the adoption of the annual appropriation. Under the Civil Service Act, however, it is expressly provided that the warden of the county hospital, superintendent of the insane asylum and poorhouse, county agent, county physician, custodians of court house and criminal court building, county architect, committee clerk of the board, and superintendent of public service are not "included in the said classified service", but shall be appointed by the president of the board "with the advice and consent of the board."
Periodically the Board of County Commissioners of Cook County adopted rules to govern in the management of the affairs of said county. Subsection (a) of Rule 36, in force during each of the years here involved, reads as follows:
The salary or rate of compensation for all officers and employees of the*800 county, when not otherwise provided by law, shall be fixed by the Board of Commissioners and must be fixed prior to the adoption of the annual appropriation resolution, and shall not be changed during the year for which the appropriation is made.
During the taxable years before us, petitioner was compensated in conformity with a resolution adopted by the board in February 1922, reading as follows:
RESOLVED: That the office, position or place of employment of County Architect be, and the same is hereby established, created and provided for, and that the rate of compensation shall be as follows:
The compensation of the County Architect shall be a fee of six per cent (6%) on all work under his supervision, in accordance with the rules of the American Institute of Architects, said compensation to be paid only on work ordered by the Board of Commissioners of Cook County, or approved by it, provided that all plans and specifications for County work shall become the property of Cook County.
The aforesaid compensation shall be divided one and one-quarter per cent (1 1/4%) for preliminary studies and sketches, three percent (3%) for plans, specifications, and details, and one and*801 three quarters per cent (1 3/4%) for supervising and superintendent work, and the bills of the County Architect shall be divided accordingly.
It shall be optional with the Superintendent of Public Service at any time to limit the services of the Architect to the preparation of such plans, and the specifications and details as may be accepted and approved by the Board of Commissioners of Cook County, and to such superintendence as may be deemed advisable by the Superintendent of Public Service and performed under his direction, payments to be made for amount of work done in accordance with these limitations.
The last appointment or designation of petitioner as county architect, as shown in evidence before us, was contained in a communication of the president of the board, addressed to it in April of 1922, advising that he had appointed petitioner to the position of county architect. At a meeting of the board held on April 17, 1922, the appointment was duly approved. No subsequent appointment or designation was made, but petitioner continued to function as a "hold-over."
*956 In 1915, when petitioner was first designated as county architect, he gave a bond in the amount*802 of $50,000, said bond being in form an official bond, conditioned that petitioner would faithfully discharge "the duties of said office of county architect of said Cook County, according to the law and the rules, regulations and orders of the Board of Commissioners of said Cook County." Said bond was duly acknowledged, approved by the state's attorney, and entered in the official proceedings of the board under date of March 5, 1915. The evidence does not disclose whether or not it was continued in force during subsequent years, nor whether it or any other bond was in force, and we are unable to find as a fact that any bond was in force during the taxable years before us.
The fees provided for in the resolution shown above are substantially the same as those prescribed by the Illinois Society of Architects and the American Institute of Architects, of which petitioner was a member. Petitioner, together with the assistants and engineers employed and paid by him, performed all the architectural work of the county, including the preparation of plans and specifications as well as the supervision of construction.
During the period of time that petitioner served Cook County as its*803 architect, he performed services on 57 different projects for which he received compensation in accordance with the above resolution. There were 9 such projects in 1926, 15 in 1927, 11 in 1928, and 12 in 1930.
The board did not supply petitioner with an office or office space, nor furnish him with assistants. The architectural work of the county was performed by petitioner in his own office, located at 122 West Madison Street, Chicago, or at the projects being constructed under his supervision. He employed and paid a corps of assistants and engineers to assist him in the work of the county, and used them when and how he pleased. He retained the right to discharge them and fixed their compensation and hours of work. They were his employees and not employees of Cook County nor of the board.
Petitioner was connected with a corporation, Hall, Lawrence & Radcliffe, Inc., and all professional practice which he had, other than the work for the board, was performed for that corporation. The corporation paid him a salary for the services rendered by him during the taxable years. While the evidence does not show the agreed salaries, in his income tax returns he reported the following*804 amounts:
| Year | Amount |
| 1926 | $18,00.00 |
| 1927 | 14,560.72 |
| 1928 | 15,288.35 |
| 1930 | 12,000.00 |
*957 Petitioner was not required to report for work at any particular time of day, nor to engage in the work of the county any definite number of hours per day or days per month. The county, however, had first call upon his services and he did not permit outside work to interfere with his work for the board.
In connection with the various projects for which petitioner received compensation, a resolution in each instance was passed by the county board directing him to prepare plans and specifications. All of the projects, after completion, were used by the county in connection with the exercise of its usual or essential governmental functions.
Payment of petitioner's compensation was made conformable to the resolution shown above, 1 1/4 percent for preliminary studies and sketches, 3 percent for detailed plans and specifications, and 1 3/4 percent for supervising and superintendent work. As the work progressed, petitioner submitted his bills for the prescribed fees; the bills were certified by the superintendent of public service under whose supervision*805 petitioner worked, were then forwarded to the county board, and, if approved by the board, paid by check bearing on its face the name of the project in connection with which the services were rendered. Payment was made out of the funds derived from the sale of bonds issued for the particular project under construction.
In addition to the services performed by petitioner under the above resolution, and for which he was compensated on a percentage basis, he performed other services, referred to in the evidence as "routine matters." These consisted chiefly in supervising the making of minor repairs in or to the public buildings, doing certain architectural work in connection with repair and minor construction jobs being done by the corps of county mechanics, going with the superintendent of public service on periodical inspections of county buildings and advising with the board and county officers. For such services he received no compensation.
OPINION.
MELLOTT: Petitioner contends that the compensation received by him from Cook County is exempt from the Federal income tax. He argues that his "office, position or place of employment" as county architect is an integral part*806 of the board's regular establishment for the management of the affairs of the county and one of the means by which it exercises its sovereignty or performs its usual and essential governmental functions. If it is, then the exemption must be recognized, for the state must be "left free *958 from undue interference" by the Federal Government in order that it may administer its affairs within its own sphere. McCulloch v. Maryland,4 Wheat. 316">4 Wheat. 316; Collector v. Day,11 Wall. 113">11 Wall. 113; Pollock v. Farmers Loan & Trust Co.,157 U.S. 429">157 U.S. 429; Ambrosini v. United States,187 U.S. 1">187 U.S. 1; Flint v. Stone Tracy Co.,220 U.S. 107">220 U.S. 107; Metcalf & Eddy v. Mitchell,269 U.S. 514">269 U.S. 514; Helvering v. Powers,293 U.S. 214">293 U.S. 214.
While the rule exempting from Federal income tax the compensation of an officer or employee of a state or political subdivision thereof engaged in the performance of a usual and essential governmental function is well settled, and has been applied by the courts and by this Board in many cases, a "twilight zone" yet exists and "just what instrumentalities*807 * * * are exempt from taxation * * * can not be stated in terms of universal application." There is no formula which can be applied in every case (Metcalf & Eddy v. Mitchell, supra) but each must be decided upon its own facts. Do the facts which we have found require recognition of such immunity or should the respondent's determination of deficiencies be approved?
Petitioner asserts that he was either an officer or an employee of a political subdivision of the State of Illinois. We will first pass upon his contention that he was an officer.
The Revised Statutes of the State of Illinois provide that the president of the board of county commissioners shall appoint all officers and employees of Cook County and fix their salaries or rate of compensation prior to the adoption of the annual appropriation (ch. 34, sec. 66(9), Callaghan's Illinois Revised Statutes), and further provide that the president of the board shall, with the advice and consent of the board, appoint the warden of the county hospital, the county agent, the county physician, the county attorney, the county architect, etc. Ch. 34, sec. 66(20), Callaghan's Illinois Revised Statutes.
*808 In support of his contention that he was an officer, petitioner argues that he and each of his predecessors accepted the "office" upon the basis of the compensation fixed by resolution of the board of county commissioners - fixed in obedience to the specific direction of the statute so to do; and each incumbent filed a bond conditioned "for the faithful discharge of the duties of his office."
We do not believe that the giving of a bond, though in form an official bond, requires us to find that the principal therein named is necessarily an officer. While the taking of an oath and the giving of a bond are sometimes said to be indicia of an officer, the mere fact that a bond is given or an oath is required, does not ipso facto make one an officer.
*959 In Metcalf & Eddy v. Mitchell, supra, the Supreme Court of the United States defined an office in the following language:
An office is a public station conferred by the appointment of government. The term embraces the idea of tenure, duration, emolument, and duties fixed by law. Where an office is created, the law usually fixes its incidents, including its term, its duties and its compensation. *809 * * * The term "officer" is one inseparably connected with an office. * * *
A search of the record fails to disclose that petitioner's term and duties were fixed by law. Moreover, it does not show any "fixing" of petitioner's compensation, at least as defined by the courts of Illinois. "Fixing", as construed by such courts, means making definite and certain. As the court said in McGovney v. Village of Melrose,145 Ill. App. 329">145 Ill.App. 329 (affd. by the supreme court, 89 N.E. 264">89 N.E. 264), in construing a similar statute, "This is apparent from the words following 'such fees or compensation shall not be increased or diminished, to take effect during the term for which any such officer was selected or appointed.' Manifestly, unless the compensation be a sum certain, it cannot be told whether it has been increased or diminished." Cf. Koons v. Richardson,227 Ill. App. 477">227 Ill.App. 477; Koons v. City of Mt. Vernon,245 Ill. App. 165">245 Ill.App. 165; George M. Stevens,31 B.T.A. 1035">31 B.T.A. 1035. Sec. 10, art. 10, Constitution of Illinois.
We have found that petitioner was paid his compensation, not out of the general funds of the county, but out*810 of the money raised by the sale of bonds issued in connection with the construction projects which he planned and supervised. While this is the usual method adopted in paying the fees of an architect, it is not the method apparently required by the constitution and the general statutes of Illinois for the payment of "county officers."
Thus, under the sixth subsection of section 64 of chapter 34, Smith-Hurd's Revised Statutes, it is provided that the board shall adopt a resolution appropriating "such sums of money as may be necessary to defray all necessary expenses and liabilities * * * to be * * * paid or incurred"; that "said appropriation bill shall specify the several objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose." Included within the appropriation bill are such items as current salaries of county officers and employees, provision for the payment of principal and interest on county indebtedness, maintenance of county property and institutions, including courts and juries, dieting occupants of the jails, prisons, hospitals, and industrial schools, and the cost of elections. But no sum would be appropriated*811 in such an appropriation bill for the payment of the compensation of this petitioner.
It is our conclusion that petitioner has failed to sustain the burden case upon him of establishing that he was an officer of a state or *960 political subdivision thereof, for clearly, neither the tenure, duration, emoluments, nor duties of county architect were fixed by law.
Petitioner devotes little space in his brief to his contention that he was an employee. He merely states: "But admitting for the purpose of consideration, without conceding it to be the fact, that some attribute that usually attends an office is absent in the case of the county architect of Cook County, yet the consequence of such absence could only be to lower the rank of county architect from that of 'office' to that of 'employee.'" This does not necessarily follow, especially where, as here, there is no evidence of that direction and control so essential to the relationship of employer and employee. A careful study of the record convinces us that petitioner was not an employee, and we so hold.
It is argued that the fact petitioner was appointed to "an office, position or place or employment" is sufficient*812 in itself to compel recognition of the exemption. This statement, however, is too broad. As said by the Supreme Court in the recent case of Helvering v. Powers, supra: "If the dealers in South Carolina, or those employed to operate the state stores in Ohio, had been denominated public officers, and, as such, had been assigned definite tenure and duties, the same result would have been reached, as the principle involved would be equally applicable." (Italics supplied.) The immunity does not attach simply because one may be designated an officer - or employee - but, as the court stressed in the above case, the "nature of the activity" and "the fundamental reason for denying federal authority to tax" must be considered.
The "fundamental reason" requiring the recognition of the exemption or immunity is "that each government, in order that it may administer its affairs within its own sphere, must be left free from undue interference by the other. * * * Neither government may destroy the other nor curtail in any substantial manner the exercise of its powers. * * * direct interference with the functions of government itself * * * (is) * * * beyond the taxing*813 power." (Metcalf & Eddy v. Mitchell, supra.)
The limitation must receive a practical construction. Exemption should be denied unless the failure to recognize it will result in a "direct interference with the functions of government itself" - the "usual governmental functions" - or curtail in any substantial manner its sovereign powers. It should be allowed if failure to do so "impairs in any substantial manner the ability" of the one receiving the compensation to discharge his obligation to the state, or impairs the "ability of a state or its subdivisions to procure the services of private individuals to aid them in their undertakings." (Metcalf & Eddy v. Mitchell, supra.)
*961 Petitioner had the burden of establishing by satisfactory and competent evidence that the respondent erred in determining the above deficiencies. Possibly evidence could have been produced justifying us in finding as a fact that failure to recognize the claimed exemption would impair the ability of Cook County "to procure the services of" an architect; but no such evidence was introduced. On the contrary, petitioner testified that the county paid*814 him the same compensation as that prescribed by the Illinois Society and the American Institute of Architects for such work.
Q. Do they have any schedule, or prescribed fees, any limitation with regard to fees?
A. Yes. Q. State what they are.A. They are substantially the same as I am getting from the county; I think their percentage is a little different from the county, but the total amount is the same.
In other words, he received a total of 6 percent - exactly the amount which a private employer would have paid him, and the same amount that he, or any other member of the associations would have charged any municipality. It is clear, therefore, that the incidence of taxation or exemption upon the compensation received by him from the county did not "impair in any substantial manner" his ability to discharge his obligation to the state, nor impinge upon the ability of the county to have its necessary architectural work done for it.
Both parties cite and rely upon - or attempt to distinguish - John Reid, Jr.,28 B.T.A. 1217">28 B.T.A. 1217. In that case we held that one holding the position and discharging the functions of city architect of San Francisco, by*815 virtue of a resolution of the board of public works defining his duties and making provision for his compensation upon the basis of a percentage of the cost of construction projects in respect of which his services were performed, was not entitled to have such compensation exempted from the Federal income tax. The facts in that case are quite similar to the facts in the instant case. The appointment of each petitioner was sanctioned by law; the resolution in the Reid case designated him "City Architect" while the one in this case designated petitioner "County Architect." The compensation of each was 6 percent - the amount scheduled by the American Institute. Each rendered substantial services for which he received no compensation. Each maintained a staff of assistants and engineers to aid in completing the tasks assigned, and each maintained a private office. Reid was furnished an office and staff in the City Hall, but petitioner was not furnished any office or assistants by the county. Each was paid out of the funds allocated to the improvement *962 which he planned and supervised rather than out of the "general fund" or the fund derived from the imposition of direct*816 taxes levied for the payment of salaries of officers and employees.
Petitioner in his brief directs our attention to certain language in the John Reid, Jr., case, which, he says, "expressly recognizes the exemption of the compensation of one who, like Hall, is an integral part of the regular establishment of a state or political subdivision." The language relied upon is:
On the other hand, if an architect, lawyer, physician, or other professional man is employed by a state to perform whatever tasks may be assigned him (although not precluded from accepting other employment), if his service is continuous and regular, if his work is of a routine and recurring character, or if no definite object is to be accomplished, he has been held an officer or employee and not an independent contractor. United States v. J. Turner Butler, 49 Fed.(2d) 52; Burnet v. Livezey, 48 Fed.(2d) 159; affirming 15 B.T.A. 806">15 B.T.A. 806, et al.
While the quotation is correct, the remainder of the paragraph is quite pertinent and likewise should be considered. Immediately following the quoted portion, we said:
Although petitioner's service was in fact*817 regular and continuous, this was because of the city's building activity; had it ceased, he would have been without work or remuneration. While he did much routine, attended meetings, and made recurring reports, and in fact gave recommendations whenever asked, these services were beyond the express contemplation of the resolution and had no effect upon his compensation. Each task which the resolution authorized had to be specially assigned, and any compensation which he might draw had to rest entirely on such special assignment, which, moreover, the Board of Public Works was not legally bound to give in any instance. Had it become dissatisfied with his services, no discharge would have been necessary to dismiss him; a mere failure to assign him new projects would instantly have left h!m without responsibility of any kind and without compensation. If his services were continuous, the continuity resulted from no term employment, but from a series of fresh employments which kept him steadily engaged. This is characteristic of an independent contractor, not an employee.
Numerous cases have come before us where architects or engineers, having performed services for states or political*818 subdivisions, have claimed that the compensation received was exempt from the Federal income tax. Some of the architect cases are Emma B. Brunner, Executrix,5 B.T.A. 1135">5 B.T.A. 1135; Clarence H. Johnston,14 B.T.A. 605">14 B.T.A. 605; R. Clipston Sturgis,10 B.T.A. 1394">10 B.T.A. 1394; H. A. Underwood,20 B.T.A. 1117">20 B.T.A. 1117 (Underwood v. Commissioner, 56 Fed.(2d) 67); John E. Beaman,22 B.T.A. 1387">22 B.T.A. 1387; John Reid, Jr., supra. Engineer cases - Fred H. Tibbetts,6 B.T.A. 827">6 B.T.A. 827; George W. Fuller,9 B.T.A. 708">9 B.T.A. 708; John R. Spelman,18 B.T.A. 313">18 B.T.A. 313; Joseph Milton Howe,19 B.T.A. 849">19 B.T.A. 849; Edward M. Lynch,30 B.T.A. 727">30 B.T.A. 727; F. A. Pease,30 B.T.A. 17">30 B.T.A. 17. In all the above cases exemption was denied.
*963 We refuse to exalt artificiality above reality or to give effect to form rather than substance. Our findings show that petitioner was in fact an independent contractor. He performed the same services as were performed by the taxpayers in the above cited cases; he received his compensation on the same basis. He selected*819 his own office, employed his own assistants, retained the right to discharge them and to use them indiscriminately in his work either for the county or for others. He was not required to work any particular number of hours or days, or to report for work at any particular time. He selected his own instrumentalities, employed such methods as he saw fit to accomplish the given tasks, and was paid upon the basis of complted work. The county was not interested in where or how the tasks were completed; and only to a limited extent in when they were completed; petitioner completed such tasks in his own way and as his judgment dictated, and was free to adopt any means to accomplish the desired results.
We hold that the compensation received by petitioner from Cook County is not exempt from the Federal income tax and the respondent did not err in determining the deficiencies.
Judgment will be entered for the respondent.