*1988 An attorney appointed by the Attorney General of Illinois to assist in the investigation of certain municipal affairs of the city of Chicago and to aid in the prosecution of certain criminal cases in connection with charges of misconduct against certain members of the Chicago Board of Education and other city officials, is not an officer or employee of the State of Illinois or of Cook County and the compensation paid to him for such services from funds duly appropriated by the County Board of Cook County, Illinois, is not exempt from income tax.
*975 The Commissioner has determined deficiencies in income tax against the petitioner for the years 1923 and 1924 in the respective sums of $328.56 and $139.46. These deficiencies grow out of the action of the Commissioner in including in taxable income for the *976 years in question the sums of $3,962 and $4,650, respectively, which sums were received by the petitioner as compensation for professional services rendered to Cook County, Illinois, in connection with the making of certain grand jury investigations*1989 and the prosecution of criminal cases brought against certain officials as a result of such investigations.
FINDINGS OF FACT.
The petitioner is an attorney, practicing law in the city of Chicago, Ill.
In the latter part of 1922 the Attorney General of the State of Illinois, at the request of the State's Attorney of Cook County, took over the grand jury investigation of the affairs of the Board of Education of the city of Chicago. This investigation was subsequently extended to cover certain other municipal affairs. Frederick A. Brown, an attorney, was appointed by the attorney general as a special assistant attorney general, to be in direct charge of the investigation. With the approval of the attorney general, several other attorneys, including the petitioner, were employed to assist Mr. Brown in this particular investigation. Special offices were provided for the attorney general, where the work incident to the investigation was carried on.
The petitioner was employed in April, 1923, under a verbal agreement by which he was to receive the sum of $100 per day. No arrangement was made with the petitioner as to the length of time that he should serve. He discontinued*1990 his services in June, 1923, when he left on a vacation trip to Europe, and resumed his employment on the same basis in the early part of 1924. The exact dates of his employment are not disclosed by the evidence but he received as compensation for his services in 1923 and in 1924 the respective sums of $3,962 and $4,650. These amounts were paid by Cook County out of funds appropriated by the County Board.
The petitioner appeared before the grand jury several times and assisted with the trial work in one case. He interviewed many witnesses and examined the evidence. He drafted a great many indictments and appeared in court on motions in connection with the indictments. The petitioner had the oath of office administered in order that no question would be raised with respect to his appearance before the grand jury and that no attack might be made upon the validity of the indictments on the ground that an unauthorized person had appeared before the grand jury. The other attorneys did not take an oath of office. Mr. Brown held frequent conferences with the petitioner and the other attorneys assisting in the work. The investigation was made in the name of the attorney general *1991 *977 and the work was under his supervision, but Mr. Brown was the chief of the investigators. The direct contacts of the attorney general were always with Mr. Brown. Questions of policy were decided by the attorney general. All of the services rendered by the petitioner were performed in the offices provided for the attorney general and in court, except that one indictment was dictated to a court reporter on the outside. During the period the petitioner was engaged in this work he devoted his entire time to it and carried on no private law practice. The amounts of income for legal services shown on his income-tax returns for 1923 and 1924 were not received for any services rendered during the time he was engaged in rendering services to Cook County.
The petitioner did not report in his returns of income for 1923 and 1924 the amounts received as compensation for professional services rendered to Cook County.
OPINION.
MATTHEWS: The sole issue presented in this case is whether the amounts received by the petitioner in 1923 and 1924 as compensation for legal services rendered under a contract with the Attorney General of Illinois to assist in conducting certain grand*1992 jury investigations in Cook County, Illinois, under the circumstances set out in our findings of fact, constitute taxable income. The petitioner received from Cook County as compensation for his professional services in 1923 and 1924 the respective sums of $3,962 and $4,650, and treated these amounts as nontaxable income in his income-tax returns for those years. Upon auditing these returns the Commissioner included these amounts as taxable income and proposed the deficiencies which we are here called upon to redetermine.
It is alleged by the petitioner that the compensation paid to him by Cook County is exempt from Federal income tax by virtue of the provisions contained in section 1211 of the Revenue Act of 1926, as follows:
Any taxes imposed by the Revenue Act of 1924 or prior revenue Acts upon any individual in respect of amounts received by him as compensation for personal services as an officer or employee of any State or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded.
*1993 In order to bring the compensation involved herein within the exemption claimed, it is necessary that the petitioner prove himself to be either an officer or an employee of the State of Illinois or of Cook County, as those terms are defined and construed by the courts.
*978 In , the Supreme Court of the United States said:
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. ; . The term "officer" is one inseparably connected with an office; but there was no office of sewage or water supply expert or sanitary engineer, to which either of the plaintiffs was appointed. The contracts with them, although entered into by authority of law and prescribing their duties, could not operate to create an office or give to plaintiffs the status of officers. *1994 ;. There were lacking in each instance the essential elements of a public station, permanent in character, created by law, whose incidents and duties were prescribed by law. See ; ; .
Applying this definition to the facts of the instance case, we are of the opinion that the petitioner clearly was not an officer of the State of Illinois or of Cook County.
In , the court said:
The terms "officers" and "employees" both, alike, refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer or employee. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual, retained for a single suit, is not his employee. It is true, he was engaged*1995 to render services; but his engagement is rather that of a contractor than that of an employee.
In view of these decisions of the Supreme Court with respect to the character of service to be performed before it can be said that a person is an officer or employee, it is evident that continuity of service is an essential element and that one engaged to render service in one or more particular transactions is neither an officer or employee.
The facts of the instant case are very similar to those presented in the case of , in which case the petitioner was designated by the Attorney General of Pennsylvania as special counsel to represent the Commonwealth in the matter of inheritance taxes due by certain estates. During the pendency of the litigation in which Reed was acting in the interest of the Commonwealth of Pennsylvania, he was in frequent communication with the attorney general with regard to the several cases and no important questions of policy were decided without his previous consultation with and authority from the attorney general. His duties were not expressly prescribed by contract. As in the Reed case, the petitioner*1996 in the instant case never entered into any written contract or agreement with the attorney general relative to his employment. *979 His services were engaged for no definite period and the implication of continuity is negatived by the fact that he was chosen specifically to prepare indictments and to render other legal services in connection with a particular investigation. The petitioner testified that he took an oath of office in order that he might appear before the grand jury. The record does not disclose what oath was administered to the petitioner. There appears to be no express statutory provision in the Illinois laws for a special assistant attorney general.
Counsel for the petitioner in the instant case has endeavored to distinguish it from the Reed case by pointing out that Reed was a member of a law firm in Harrisburg and maintained his offices there and did not devote his entire time to the services he rendered for the Commonwealth of Pennsylvania. Our attention has also been directed to the fact that Reed's duties related solely to civil litigation, whereas the petitioner in the instant case was engaged to prosecute crime. We do not agree that any fundamental*1997 distinction has been made upon which a contrary decision might be based. We can not see that a lawyer employed by an officer of a State or county to assist him in a criminal prosecution stands on any different footing from a lawyer employed to assist such an officer in civil litigation. We think that neither the amount of time devoted to performing legal services, nor the place where they are performed, is a controlling point in determining whether an attorney is an employee or an independent contractor. An independent contractor may devote his entire time for a period to a special job and still fall short of being an officer or employee of a State or political subdivision thereof. In other words, it is possible for an officer or employee to accept outside employment without changing the character of the services rendered by him, but it does not follow that one who is engaged to render service in a particular transaction and who must devote his entire time to such employment for the duration thereof, becomes an officer or employee within the meaning of the statute.
With respect to the right of control, or lack of it, exercised by the attorney general with respect to the manner*1998 in which the services were performed by the attorneys chosen to assist him, and the means used to accomplish the purpose for which they were employed, the petitioner in the instant case appears to have been in a position equivalent to that occupied by Reed. In the Reed case it was held that the taxpayer was not an employee of the Commonwealth of Pennsylvania and that the compensation paid to him for his legal services was subject to the Federal income tax. Our decision was reversed by the , but this latter decision was in turn reversed by the Supreme Court of the United States in a memorandum opinion dated May 5, 1930, , upon the authority of , and We think the ruling in the Reed case is applicable to the instant case and we hold that the compensation received by the petitioner from Cook County is taxable income as determined by the respondent.
This conclusion is in accord with our decision in the case of *1999 , where the petitioner was also an attorney employed to assist the Attorney General of Illinois is this same investigation of the municipal affairs of the city of Chicago, and where the terms of employment and the attending facts are practically identical with those set out herein.
Judgment will be entered for the respondent.