1929 BTA LEXIS 2565">*2565 Petitioner held to be an employee of a municipal corporation of the State of Arkansas and his compensation exempt from Federal income tax.
16 B.T.A. 556">*556 The Commissioner asserted a deficiency in income and profits tax of $359.40 for the year 1922. The petitioner has instituted this proceeding for a redetermination of his liability. It is alleged that the respondent erred in holding that petitioner was not an employee of the Ft. Smith-Van Buren District, an improvement district and a subdivision of the State of Arkansas, and that the income derived by him from the said District was not exempt from the Federal income tax.
FINDINGS OF FACT.
Petitioner is an individual residing at Ft. Smith, Ark. In the taxable year he was actively engaged in the practice of his profession as an attorney and maintained an office for that purpose.
16 B.T.A. 556">*557 The Ft. Smith-Van Buren District was created by an act of the General Assembly of Arkansas in 1909, as a public agency to construct and operate a bridge across the Arkansas River between the cities of Ft. Smith and Van Buren. 1929 BTA LEXIS 2565">*2566 The bridge as constructed is a steel structure and used by all the highways crossings the Arkansas River in the neighborhood of Van Buren, which highways are supported by the United States Government and the State of Arkansas. The bridge as constructed is free to the public. The act creating the District contained the following language:
* * * And said District may appoint all officers and agents which it deems necessary and suitable for the conduct of the business of said corporation. * * * and said District shall be known as the Ft. Smith-Van Buren District and shall be a public agency and body politic and corporate under said name and style, and by that name may sue and be sued, plead and be impleaded and have perpetual succession for the purposes hereinafter designated.
During the years 1914 and 1915 petitioner was notified by the president of the Bridge District that he had been selected as counsel for the District for all of its legal matters. He was not present when the matter was determined and had no previous information that he would be selected. The agreement under which he was employed was verbal and provided that he should give the District his legal services1929 BTA LEXIS 2565">*2567 for the sum of $500 per year, with the understanding that the Board had the right to call upon him for any and all services as its attorney and that he should give all the time necessary for the performance of all duties as counsel to the Board. He was obligated to attend to all legal matters either in or out of the courts and it was understood that in case it became necessary to go into court in the interest of the Bridge District, he would be allowed additional compensation for such services in a reasonable amount to be fixed by the Board.
From the date of his employment petitioner continued to serve the Bridge District in the capacity of attorney, up to the time of bringing this appeal and including the taxable year here in question. He was not employed to do a special work or for a special period. His employment was from year to year. Petitioner's duties included consultation and advice, the writing of contracts and routine legal services of every kind and description which the Board might require. He frequently attended meetings of the Board of his own volition and sometimes upon call. When property owners considered their property was assessed too high, they had the1929 BTA LEXIS 2565">*2568 right to an appeal before the assessors and to appeal from them to the District and thence to the court. Petitioner represented the District in these hearings without any increase in compensation unless the appeal was to the courts. He received compensation of $500 per year.
16 B.T.A. 556">*558 During this time petitioner maintained his own office and had a general law practice. He did not take any cases in his private practice where the interests of such clients conflicted with the interest of the Bridge District. Whenever his private practice conflicted with his duties to the Bridge District his private practice gave way. Usually the clerical or stenographic work incident to the transaction of the Bridge District's business by petitioner was performed by his employees.
During the years 1921 and 1922 the Bridge District became involved in important litigation in which it was represented in court by petitioner. He was paid as compensation for his service $2,500 in the taxable year. He also received in that year annual compensation from the Bridge District in the amount of $500.
In his tax return for 1922 petitioner deducted the compensation received from the Bridge District1929 BTA LEXIS 2565">*2569 in the amount of $3,000, on the ground that it was compensation paid to an employee by a subdivision of the State and exempt. The Commissioner disallowed this deduction and asserted the deficiency in tax here in question.
OPINION.
PHILLIPS: In the year 1922 petitioner received $3,000 as compensation for legal services rendered by him to the Ft. Smith-Van Buren District in the State of Arkansas. The question presented by this proceeding is whether such compensation is subject to the Federal income tax.
The Ft. Smith-Van Buren District was created by an Act of the General Assembly of Arkansas in 1909 (Laws of 1909, p. 325), as a public or governmental agency for the construction and operation of a bridge over a navigable river between two counties in Arkansas. See ; . There is no doubt that it was a municipal corporation and a political subdivision of the State of Arkansas. It was empowered to appoint all officers and agents which it deemed necessary and suitable for the conduct of its business. It was authorized to sue and be sued and plead and be impleaded. By clear implication1929 BTA LEXIS 2565">*2570 it was authorized to appoint an attorney. During the years 1914 and 1915 petitioner was appointed attorney for the District to attend to all its legal matters. For the routine legal services petitioner was to be paid $500 per year. If it became necessary to go into court on behalf of the District, he was to be paid such additional compensation as the Board of the District might determine. Petitioner was not employed for a special transaction or for a single suit. He was not employed to accomplish any particular result in a way chosen by himself, but was obliged to render any legal service assigned to 16 B.T.A. 556">*559 him. He was employed to take care of all legal work of the District and to advise the Board in any matters it desired. The Board had the right to call upon him at any and all times for legal services, and he was bound to perform such services regardless of the time required. While he maintained an office for the practice of law and took other clients, he was precluded from serving such clients where their interests were adverse to the interests of the Bridge District. Although the length of his service was not defined by the terms of his employment, he was, at least, 1929 BTA LEXIS 2565">*2571 employed from year to year. In this situation we think that one whose services are so at the command of another is an employee of the latter, though the services are legal services of a lawyer who maintains his own office and is not forbidden to render professional services to others. ; ; affirmed on this point in .
That petitioner received compensation for cases tried in court does not in any way affect his status as an employee as to those services. Under his contract of employment he was obligated to prosecute or defend all cases in court where the Bridge District required his services. These duties were in addition to the regular routine services for which he received $500 per year. That he received additional compensation for such services was not inconsistent with his employment and did not make him an independent contractor as to those services. The necessity of defending the suit in question merely increased his duties and served to increase his compensation. We are of the opinion1929 BTA LEXIS 2565">*2572 that petitioner was an employee of the Ft. Smith-Van Buren District, whether acting as attorney in litigation or as counsel on routine matters, and that the compensation received for his services is exempt from Federal income tax. ;; . See also Revenue Act of 1926, sec. 1211.
Decision will be entered for the petitioner.