*2198 INCOME - PARTNERSHIP - DISTRIBUTIVE EARNINGS. - Petitioner and his wife contributed assets jointly owned to a partnership under contract witnessing that they each held a one-sixth partnership interest. Respondent included in petitioner's income the distributive earnings of the partnership paid to both petitioner and wife on their individual interests, upon the theory that the contract of partnership was invalid under state law which prohibited a partnership relation between husband and wife. Held that the beneficial ownership of a one-sixth interest in the partnership property being in petitioner's wife, the one-sixth of the earnings of the partnership paid her individually by it represented income to her and not to petitioner.
*1028 This proceeding is in respect to a deficiency in income taxes in the sum of $2,531.95 for the calendar year 1923, and results from respondent's action in including in petitioner's income the sum of $16,356.92 paid in that year to his wife*2199 as representing the earnings of a one-sixth interest in a partnership in which petitioner also held a one-sixth interest.
FINDINGS OF FACT.
Petitioner is a resident of Detroit, Mich. Upon his marriage in 1910, petitioner and his wife opened a joint bank account in which were deposited from that time forward the savings accumulated from his salary and sums which his wife realized from taking roomers. This account was mutually understood by petitioner and his wife to belong to them equally. They subsequently purchased a home, making payments from this account, the title being taken by them jointly.
In 1919 petitioner, with two associates, Wagner and Barr, organized a partnership under the name of the Tubular Specialty Mfg. Co., for the fabricating of steel products, each of the three partners contributing $5,000 and each being entitled under the partnership agreement to share equally in the profits. Petitioner's contribution to this partnership was $3,500 in cash, which represented the aforesaid joint account of himself and wife, and his note for $1,500. Shortly thereafter petitioner and his wife sold the home heretofore *1029 mentioned and with the proceeds of their*2200 equity paid the note for $1,500.
Shortly after the partnership began business it had trouble due to lack of a proper system of bookkeeping and petitioner's wife, who before her marriage had been a bookkeeper, took charge of the accounts and, with the assistance of an accountant, installed a set of books. It had been understood between petitioner and his wife from the time of the organization of the partnership that she had an equal interest with him in the partnership interest standing in his name and upon her taking charge of the bookkeeping of the firm she insisted that her interest be shown by including her as a partner. Shortly prior to this, one of the partners, Wagner, had made a gift to his wife of one-half of his one-third partnership interest and in February, 1920, a new partnership was formed by articles of partnership signed by Roy E. Wing, Ora Cecil Wing, Alfred T. Wagner, Edith Arabelle Wagner, Harry T. Barr and Margurette C. Barr, each of these as partners having an equal interest in earnings and in partnership property. From this time forward up until dissolution of the partnership in 1925, petitioner and his wife were each paid individually one-sixth of the partnership*2201 earnings in each year. In the taxable year here in question petitioner's wife received from the partnership the sum of $16,356.92, as representing the earnings of one-sixth partnership interest, a similar amount being received by petitioner. The amount so received by his wife was included as income in her return for that year. Upon the dissolution of the partnership in 1925 the partnership property was sold and the proceeds were distributed, one-sixth of such proceeds being paid petitioner and one-sixth being paid to his wife.
In determining the deficiency here appealed from, respondent has included in petitioner's income for 1923 the amount of $16,356.92 paid his wife in that year as partnership earnings distributable to her.
OPINION.
TRUSSELL: The evidence in this case shows clearly and without dispute that petitioner's wife was the owner of one-half of the contribution made by him to the partnership assets. Respondent has not filed a brief but his theory, so far as we can gather it from the wording of the deficiency notice, is that, under the laws of Michigan, the relation of partnership can not exist between husband and wife and accordingly the contract of partnership*2202 executed in 1920 did not constitute petitioner's wife a partner and that the result of this condition is that the total of the profits distributed to the two one-sixth interests must, for purposes of income taxation, be considered as received by petitioner and taxable to him alone.
*1030 In this theory it has been overlooked that the identity of the party taxable upon income from a partnership interest is not determined merely by the name in which such interest is held but by the ownership of the corpus of the partnership interest. Cf. .
As we view it, the income received by petitioner's wife upon her actual interest in the assets producing such income represented income to her whether she was in law a partner or whether the partnership agreement was under state law inoperative to create, as to her, a partnership liability. It is clear that even had petitioner's wife not been a party to the contract of partnership and the amount here in controversy been paid to petitioner as a portion of the distributive income of a partnership interest standing in his name alone, he would have received this sum merely as trustee for her, to*2203 whom it would be taxable. ;; ; ; .
The limitation of the Michigan law is for the protection of the wife. It can not be invoked to deprive her of what is hers and vest it in the husband. Cf. ; . In , where the same question here involved was raised, we quoted the court in ; , that: "The Married Woman's Act was passed for the protection of married women. It was intended as a shield and not a sword. Its purpose was to enlarge her rights, not to contract them, and certainly it was not meant to deprive her of the right, either acting alone, or jointly with others, of protecting her interests in property, either real or personal."
We hold that respondent erred in including in petitioner's income for the calendar year 1923 the amount of $16,356.92*2204 paid by the partnership in that year to his wife.
Reviewed by the Board.
Judgment will be entered for the petitioner.
STERNHAGEN, ARUNDELL, and MURDOCK dissent.