*3887 Petitioner held not to have been an officer or employee of the City of Fall River, Mass.
*1394 This is a proceeding for the redetermination of a deficiency in income tax for the calendar year 1922 in the amount of $658.80. The question in issue is whether the petitioner was an employee of the City of Fall River, Mass., during the calendar year.
FINDINGS OF FACT.
The petitioner is an architect, with his office and place of business at Boston, Mass. Prior to 1921 he had had much experience in the designing and construction of school buildings. In 1902 he was appointed chairman of the school house commission of the City of Boston, and served in that position for eight years. He had also made surveys for many different cities relative to the location of school buildings and the types of school buildings to be erected. The City of Fall River, Mass., had gone through a period of inactivity in the construction of school buildings from 1917 to 1921. In the latter year it had several millions of money available for new buildings and the officials of the city*3888 were considering a complete change of the school system. Representatives of the city interviewed the petitioner in 1920 or 1921 with a view to engaging his services for several years in advising the school committee of Fall River as to what its program should be, where the school houses should be erected, what size they should be, and more particularly to consider the question of the junior high schools. The Committee was under the necessity of considering school population over a large area. Petitioner was to study the whole city, its population and growth, and that meant a study of the industries of the city, and what the increase in school population would be. He was to advise on the program, determine the character and cost of the buildings, and be always at the call of the school committee. Indicating his willingness to serve the city in such capacity, a contract was drawn up which provided as follows:
This AGREEMENT made the fifth day of April in the year of our Lord nineteen hundred and twenty-one between R. Clipston Sturgis, of Boston, in the County of Suffolk and State of Massachusetts, hereinafter called the contractor, and the City of Fall River, a municipal Corporation*3889 duly organized by law and *1395 located in Fall River, in the County of Bristol in the Commonwealth of Massachusetts; witnesseth as follows, to wit:
1. The said Contractor hereby agrees to perform at such time and places as may be required by the SCHOOL Department of said City in accordance with the schedule annexed which is made a part hereof:
Architectural services in accordance with schedule hereto annexed.
2. The said City of Fall River, for the consideration aforesaid, agrees to pay to said Contractor in the manner in which bills against said City are usually paid, according to its rules, customs and ordinances, the following sums namely:
In accordance with the terms of the schedule hereto annexed.
In witness whereof the said Contractor, by the proper duly authorized person or persons, and the said City of Fall River, by Hon. James H. Kay, its Mayor; all being hereunto duly authorized, hereunto set their hands and seals.
This contract was executed by the petitioner and members of the school department and was approved by the mayor. The schedule annexed to the contract reads as follows:
AGREEMENT made this fifth day of April, 1921, between the School*3890 Committee of the City of Fall River (hereinafter referred to as the "owner") and R. Clipston Sturgis, advisory architect, (hereinafter referred to as the "Architect").
(1) RECITALS.
The Owner contemplates carrying out a program of school construction extending over a period of three years and involving an outlay of One Million, Five Hundred Thousand Dollars ($1,500,000) and the Architect is to advise on all problems connected therewith. The estimated expenditure, however, is not to affect the amount of his compensation, which is to be based upon the following terms; -
(2) SCOPE OF PROFESSIONAL SERVICE TO BE RENDERED.
The Architect shall render advisory service only. This agreement does not include ordinary architectural service in connection with the construction of buildings. The architect is to advise the School Committee on all matters connected with the study of the existing situations, the present buildings, the future needs, as embodied in new buildings, or in the alteration or abandonment of old buildings. He is to advise on new buildings, their sites, the selection of the architects, (not by competition), the study of the plans, working drawings and specifications, *3891 and the letting of the work, and its execution. This is a personal service to be rendered by the architect and not delegated to others.
(3) ARCHITECT'S SALARY.
The Architect shall receive for the first year's service a salary at the rate of Forty-five Hundred Dollars ($4,500.00) a year. This amount shall be paid as follows: - Three Hundred Dollars ($300.00) a month, and the balance at the end of the first year, April 5, 1922. If the service of the Architect is renewed it will be on the basis of Forty-two Hundred Dollars ($4.200.00) a year, pay able Three Hundred and Fifty Dollars ($350.00) a month and without any reserved amount.
(4) SUSPENSION OR TERMINATION OF ARCHITECT'S SERVICE.
(a) The Owner may at any time abandon or suspend the work, and the employment of the Architect shall thereupon terminate, if the work is abandoned, and be suspended, if the work is suspended.
(b) The Architect shall receive salary for the period of his service only, but, if the work is abandoned, and the employment of the Architect consequently *1396 terminated, he shall be paid in addition to the Three Hundred Dollars ($300.00) a month the further sum of Nine Hundred Dollars ($900.00). *3892 In any event this sum shall be payable April 5th, 1922, at the end of the first year's service. Thereafter the School Committee may terminate the Architect's service at any time with one month's notice.
(c) If the work is suspended at any time, so as to suspend also the work of the Architect, the Owner shall be at liberty to suspend payments on the Architect's salary until his work is resumed, without affecting otherwise the terms of this agreement.
(5) ADDITIONAL CHARGES.
(a) Draughting. - It is not contemplated that there will be any draughting, in the ordinary sense, as connected with an actual building operation, but it will be necessary to make explanatory diagrams and other similar work involving draughting. Strict account shall be kept by the Architect of the cost of the draughting, such cost to be the total of the salaries paid to draughtsmen engaged on the drawings, but no charge is to be made for time so spent by the Architect, and all expenses of stenographic work, done in the Architect's office, is to be considered as "a regular office expense." The total amount of such draughting expense shall be multiplied by two to cover the proportionate share of regular*3893 office expenses, and the resulting amount shall by [be] paid monthly on statements in detail from the Architect. The amount of this cannot be estimated, but it should not be large.
(b) Incidentals. - Incidental expenses in connection with the work, such as traveling expenses, long distance telephone, telegraph, express, blueprinting and other miscellaneous charges directly applicable to this work shall be paid at cost on monthly statements from the Architect. This cannot be estimated, but it would be largely transportation.
(6) This contract shall take effect as of April 5th, 1921, and the first payment will be due May 5th, 1921.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals this 5th day of April, 1921.
This schedule was approved by the members of the school committee and also by the petitioner.
The contract was made on a yearly basis for the reason that the City of Fall River lacked authority to contract for a period of more than one year. The contract was renewed from year to year. The petitioner was paid his compensation monthly on vouchers of the city treasurer. The employment by the City of Fall River did not take all*3894 of the petitioner's time. He practiced his profession in the City of Boston, and had an office in which were employed several draftsmen. During the year 1922 he performed architectural services for many different clients.
In the determination of the deficiency for the year 1922 the Commissioner has added to the petitioner's gross income the compensation received by him from the City of Fall River, paid monthly under the contract above recited.
OPINION.
ARUNDELL: The petitioner admits that he was not an officer of the City of Fall River, but contends that he was an employee thereof *1397 and that the amount received by him in 1922 as compensation for services rendered under the contract of April 5, 1921, and the renewal thereof is exempt from taxation.
The petitioner did not take an oath of office; he was free to, and did, accept concurrent employment; his employment by the City of Fall River was subject to termination if the work contemplated by the employer was abandoned or suspended, and at the most extended from year to year at the will of the employer; his duties were specifically defined by the contract of employment and were in no manner prescribed or defined*3895 by statute or ordinance of the city. Some of these characteristics of the employment were present in the case of , wherein the court held that the taxpayers were neither officers nor employees of the State or a political subdivision thereof.
At the hearing, petitioner made some point of the fact that he was subject to the direction of the school committee in his work under the contract of employment because of which he had the status of an employee rather than that of an independent contractor. It is clear from the agreement that the petitioner was engaged to render advisory services only on a number of subjects incident to the future location and construction of school buildings, in view of which it was necessary for the school committee to indicate the particular matter about which petitioner's advice was desired. There is nothing in the record showing that the petitioner was otherwise restricted in his employment.
This proceeding comes within the decision in *3896 , and the cases cited therein, on the authority of which we must decide in favor of the respondent.
Reviewed by the Board.
Judgment will be entered for the respondent.