*1113 Held, that petitioner's decedent was an officer of the State of New York.
*182 This proceeding was brought to redetermine the deficiencies in income tax of William Rand for the year 1926 in the sum of $2,017.83. William Rand died on February 10, 1931, and by proper order Rosalie C. Rand, executrix of his will, was substituted as the petitioner.
The sole issue in this case is whether or not William Rand was an officer of the State of New York by reason of his appointment and service as Special Deputy Attorney General of that State.
FINDINGS OF FACT.
The original petitioner, William Rand (hereinafter called the petitioner), was an attorney at law practicing in New York City and a member of the law firm of Jerome, Rand and Kresel during the years 1920 and 1921. On or about March 12, 1920, the petitioner *183 was appointed a Special Deputy Attorney General by Charles D. Newton, Attorney General of the State of New York, pursuant to certain designations and requisitions issued by the Governor of New York to the Attorney General thereof*1114 and by the latter to the petitioner, in accordance with the provisions of section 62 of the executive law of that state. Such designations related to the investigation of certain members of the staff of Edward Swann, District Attorney of New York County. Subsequent orders of the Attorney General directed the petitioner to take charge of all proceedings or prosecutions concerning delinquencies and irregularities of the District Attorney of the County of New York and also to appear for and represent the Attorney General in connection with certain indictments and criminal proceedings in the courts of New York.
On March 24, 1920, the petitioner took the following oath of office, which was duly filed on March 25, 1920:
I, WILLIAM RAND, do solemnly swear that I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of Special Deputy to the Attorney General of the State of New York, to which I was appointed on March 12th, 1920, according to the best of my ability.
The term of office of the petitioner was coterminous with that of Attorney General Newton, which expired on December 31, 1921. *1115 The Attorney General fixed and certified the amount of the petitioner's compensation, as required by the statute.
For a period of approximately 15 months following March 25, 1920, the petitioner performed the duties of Special Deputy Attorney General of the State of New York, pursuant to the requirements of the statute. After June, 1921, the petitioner performed no services as such Special Deputy Attorney General for which he was paid any compensation. The comptroller of the City of New York refused to pay the amount of the petitioner's compensation as certified by the Attorney General and thereupon the petitioner was compelled to bring suit to recover the reasonable value of his services as such Special Deputy Attorney General. In 1926 he obtained judgment against the City of New York and was paid the sum of $43,322.91. Of this amount he retained $11,929.23, after having paid the expense of litigation, and distributed two-thirds of the net proceeds to his partners. During the 15-month period following March 25, 1920, the petitioner received his portion of other income earned by the partnership.
The petitioner occupied the office of the partnership for the performance of*1116 his official duties, but no rent therefor was paid by the State of New York.
*184 While acting as Special Deputy Attorney General the petitioner at all times was subject to call of the presiding judge and foreman of the extraordinary terms of the grand jury by which indictments were returned and at the extraordinary terms of court at which they were tried. He also was in constant touch, by conference and communication, with the Attorney General concerning matters of which the petitioner had charge.
OPINION.
VAN FOSSAN: The sole question presented for consideration in this case is whether or not the original petitioner was an officer of the State of New York and his income as such therefore entitled to exemption from Federal taxation. There is no suggestion that the services he performed as Special Deputy Attorney General did not relate to a governmental function exercised by the State of New York. Cf. .
The petitioner contends that he was a public officer of the State of New York and that his duties were established by law. The sections of the law of the State of New York under which it is claimed*1117 petitioner's appointment was made and he performed the services in question are sections 61, 62, 200 and 201 of the Executive Law. Reference is also made to section 9 of the Public Officers' Law.
It is obvious that under the terms of the state statutes involved the Attorney General, or his duly appointed deputy, whenever required by the Governor so to do, might assume the authority and powers of the district attorney in certain designated criminal actions. The latter officer thereupon became subject to the former's direction and supervision. It is indisputable that a district attorney is a state officer occupying an essential position in the machinery of government. His duties are too well known to require comment. The same is true of the Attorney General and his position in the state government. The provisions of the Executive Law authorizing and directing the substitution of the Attorney General or his deputy for the District Attorney under certain conditions likewise are clear and unmistakable. And so are the statutory regulations governing the appointment of deputies in general and deputy attorneys general in particular. Pursuant to all of these statutes the petitioner*1118 received his appointment. His term of office was coterminous with that of his principal officer, the Attorney General. He took the constitutional oath of office. His compensation was fixed by the Attorney General and payable by the County of New York. His appointment was made under section 61 of the Executive Law and as such was a general investiture of the powers and authority of the Attorney General. The duties of the Attorney General and his deputies are established by law and not by agreement.
*185 The instructions issued by the Governor under section 62 of the Executive Law merely directed the Attorney General or one of his deputies to supersede the district attorney in certain criminal proceedings. The petitioner's appointment as Special Deputy Attorney General was general in character. As such he was required to perform whatever duties were assigned to him by the Attorney General during the term of office of that official. His designation to appear for and represent the Attorney General in criminal proceedings and investigations was directory in its tenor and served as his authority to appear before the grand jury. He served the State of New York in the enforcement*1119 of its laws in the manner prescribed by its statutes, and not in his individual capacity. .
In , the Supreme Court of the United States defined the term "office" as follows:
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 fixed its incidents, including its term, its duties and its compensation. * * * The term "officer" is one inseparably connected with an office; * * *
In speaking of the plaintiffs in that case the opinion states that "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."
In the case at bar the evidence is convincing that the petitioner held the status of an officer of the State of New York. This conclusion is supported collaterally by the fact that the Executive Law contains a special provision, section 65, authorizing the appointment of such "additional counsel" as may be required*1120 to carry out the provisions of section 62.
Since the petitioner was not employed under section 65, we may well assume that it was the intent of the Governor and Attorney General to constitute him an officer of the state rather than an employee thereof. The cases cited by the respondent and those heretofore decided by us denying exemption do so usually on the ground that the taxpayer was an independent contractor and not an employee of a state or political subdivision thereof. See ;; ; ; ; and numerous other cases. Cf. ; .
But, since we have determined that the petitioner was an officer of the state, those cases are not in point. Neither do we think it material that the petitioner retained his membership in his law firm and shared in the profits thereof. Many public officers do not devote *186 their entire time to the duties of*1121 their office. As we said in , "it is possible for an officer or employee to accept outside employment without changing the character of the services rendered by him."
Reviewed by the Board.
Decision will be entered under Rule 50.
MORRIS, STERNHAGEN, SMITH, LANSDON, and MURDOCK dissent.