*3348 For the purpose of determining the individual excess-profits tax of 1917, a partner is properly regarded as having received as salary from the partnership the amount claimed by and allowed to the partnership as deductible by it as salary to him.
*1385 This proceeding results from the determination of a deficiency of $2,053.67 income tax for 1917.
*1386 Petitioner alleges error in the computation of the tax on the petitioner's share of the distributable income from a partnership in that the amount of salary received by petitioner from the partnership was $13,000 as reported in the return, and not $25,000, as considered by the respondent.
FINDINGS OF FACT.
Petitioner is a resident of Pittsburgh, Pa., and in 1917 was a member of the partnership of Martin-Whitehill Co., which was formed on June 30, 1916, for the purpose of selling at wholesale and at retail, Republic motor trucks. Petitioner owned an interest of 65 per cent in the capital of the partnership and was entitled to a like percentage of the profits. Petitioner's books of*3349 account were kept on a cash receipts and disbursement basis. Petitioner filed an income-tax return for the calendar year 1917 upon a basis of cash receipts and disbursements, and he reported in the return the receipt of a salary of $13,000 from the partnership, and also reported $28,318.76 as his share of the distributable income of the partnership. The profits of the partnership were determined upon the basis of a fiscal year ended September 30, 1917. In determining the excess-profits-tax liability of the partnership, the respondent, at the solicitation and upon the representations of the petitioner, permitted the deduction from income of an allowance for additional salaries amounting as follows; additional salary for petitioner $12,000, additional salary for another partner $11,900, total additional salaries allowed $23,900. In the determination of the tax liability of the partnership the total salary for the petitioner allowed as a deduction from income amounted to $25,000. The services of the petitioner to the partnership were fairly worth $25,000 for the fiscal year ended September 30, 1917.
OPINION.
STERNHAGEN: The petitioner urges that no more than $13,000 may be*3350 subjected to excess-profits tax as salary received from the partnership, because this amount only was designated by the partnership as his salary, so accounted for on the partnership books, and so classified by petitioner on his return. The designation on his return of $13,000 as salary and $28,318.76 as "income from partnership" does not carry any legal sanction, for the partnership (of which petitioner held a 65 percent interest) could classify its distributions arbitrarily as it chose. See ; .
The fair construction of the excess-profits tax of 1917 requires that an amount, reasonable under all the circumstances, should be recognized *1387 as salaries paid by the partnership to the partners. . This petitioner, taking advantage of this construction of the statute, has shown that such salary to him was $25,000 and the partnership's net income was so computed. In other words, he and the partnership voluntarily changed the allocation theretofore adopted. Unlike a stockholder of a corporation, a partner may speak for his firm and for*3351 himself at the same time; and having committed the partnership he likewise committed himself to the larger salary. The reasons which support the construction adopted in the Gottlieb case, supra, in favor of the partnership apply also to charge the partner with the salary held deductible. The respondent's determination is in our opinion correct.
Judgment will be entered for the respondent.