*833 Petitioner purchased a sweepstakes ticket, causing it to be issued in the name of his wife. He delivered the ticket to her for safekeeping at which time it was mutually agreed that if anything should be won on it, the amount would be divided equally. The ticket won and the agreement was specifically complied with. Petitioner and his wife filed separate amended returns, each reporting one-half of the amount received and paying the tax thereon. Held, the respondent erred in including the entire amount received in petitioner's gross income; further held, inasmuch as there is no deficiency, the 50 percent fraud can not be imposed.
*835 The respondent determined a deficiency in petitioner's income tax for the year 1932 in the amount of $6,965.55. He also added a fraud penalty of 50 percent of the total tax which he found to be due for the calendar year in question. Petitioner contends that such action was erroneous.
FINDINGS OF FACT.
The petitioner and his wife, Edith B. Huntington, reside in Plattsburg, New York. In April 1932 petitioner purchased*834 a ticket in the Irish, Hospitals' Sweepstakes, paying therefor the sum of $2. He caused the ticket to be issued in the name of "Blend", which was his wife's middle name, and upon the stub remaining in the book out of which the ticket had been taken her name was written by the agent who made the sale. Upon arriving at his home petitioner handed the ticket to his wife, who placed it in a drawer of a desk used by both of them, and at that time it was mutually agreed between them that if and in the event anything should be won on the ticket, the amount so won would be divided equally between them. This agreement was carried out as hereinafter shown.
On May 30, 1932, a cablegram was received by petitioner's wife advising her that the ticket issued in her name had drawn a horse. This indicated that she, as the holder of the ticket, had drawn a cash prize and that she also had a chance to win an additional amount when the race was run.
On June 1, 1932, she received another cablegram advising her that the horse drawn on the ticket held by her was a winner in the race. She and her husband, the petitioner herein, experienced some difficulty in getting a bank in the United States to*835 handle the matter of collection for them, so they made a trip to Montreal, Canada, and placed the item with the Royal Bank of Canada at Montreal for collection.
*836 On August 8, 1932, the bank collected and placed to the credit of petitioner's wife in Canada $59,219.73 in Canadian funds. Petitioner and his wife then each purchased Canadian bonds in the amount of $1,500 and each deposited in savings accounts in said bank $300. They then caused the Canadian bank to issue two drafts, one of which was made payable to the petitioner and the other to his wife. These drafts were duly endorsed by the payees, and, upon being cleared, the proceeds were credited to their separate accounts. Due to the difference in exchange, the total amount received by petitioner and his wife jointly was $52,162.15 and under the arrangement existing between the, each received 50 percent of that amount.
Sometime during the summer of 1932 petitioner and his wife attended a social gathering in Plattsburg, New York, at which an agent of the Bureau of Internal Revenue was present. Someone there other than petitioner or his wife asked the revenue agent if winnings from the Irish Hospitals' Sweepstakes*836 were taxable. He replied that they were, and, upon request, calculated how much the tax would be, (1) on the basis that the entire amount were reported by one taxpayer; and (2) on the basis that one-half were reported by the wife and one-half by the husband.
On February 11, 1933, the petitioner requested the collector of internal revenue at Albany, New York, to grant him and his wife a thirty-day extension of time within which to file their income tax returns for 1932 because they expected to be out of the country until about April 15, 1933. The request was granted.
Several days prior to April 15, 1933, petitioner visited the office of W. R. Weaver, a deputy collector of internal revenue, located at Plattsburg, New York, and discussed with him the tax liability on the amount received from the Irish Hospitals' Sweepstakes. Weaver informed petitioner that such winnings were taxable, and at his request prepared a joint return in which there was included as part of the gross income the entire amount of the sweepstakes' winnings, and also separate returns for petitioner and his wife in which one-half of the amount won was included in the gross income of each. A day or so later, *837 but prior to April 15, 1933, petitioner and his wife visited Weaver and at their request he prepared separate returns for each of them in which no part of the amount won was included in their gross income. He informed them at that time that he would refuse to accept any returns which did not include the amount received from the Irish Hospitals' Sweepstakes, and that any such returns would have to be signed outside his office and sent to the collector at Albany direct. He told them that if they did not report the Sweepstakes' winnings they would be *837 charged with interest at the rate of 6 percent from the time the tax was due until it was paid.
On April 18, 1933, petitioner and his wife filed income tax returns for 1932 with the collector of internal revenue at Albany, New York. Neither included as part of his gross income any portion of the amount received from the Irish Sweepstakes.
In February 1934 complaint was made to the deputy collector located at Plattsburg that petitioner and his wife had not paid any income tax upon the amount which had been received from the Irish Sweepstakes. The agent ascertained that no tax had been paid, called petitioner to his office, *838 informed him that amended returns would have to be made at once and that tax would have to be paid upon the amount received.
Petitioner did not return to the deputy's office but employed counsel who accompanied him and his wife to the office of the collector of internal revenue at Albany, New York. Following a conference between the attorney and representatives of the Department, separate amended returns were filed by petitioner and his wife, each reporting one-half of the sweepstakes' winnings and paying the tax thereon. The amount so reported by petitioner was $26,088.03 and approximately the same amount was reported by the wife. Each paid a tax of approximately $3,184, the amount paid by petitioner being $3,184.09, which amount included interest.
The respondent added the entire amount of the sweepstakes' winnings to the net income reported by petitioner in his original return and determined his total tax liability for the year 1932 to be $10,149.64. He deducted from this amount the tax paid when the amended return was filed and determined that the deficiency due and unpaid amounted to $6,965.55. He also determined that petitioner was subject to a penalty of 50 percent*839 of the sum of $10,149.64, or $5,074.82, under the provisions of section 293 of the Revenue Act of 1932.
OPINION.
MELLOTT: Petitioner apparently concedes that the portion of the winnings actually received by him constituted gross income to him, when received. Even in the absence of any such concession by him it would be so held; for such amount was clearly "gains or profits and income" within the purview of section 22 of the Revenue Act of 1932. Nor is it material that such sum was received in an illegal enterprise; for profits derived from an unlawful business are nevertheless subject to taxation. .
The case at bar, with respect to the portion of the winnings which petitioner received, is not unlike . In that case the taxpayer had purchased four tickets in a block of eleven, it being agreed among the purchasers in the pool that if any *838 one of them held the winning ticket the others in the pool should share in the prize proportionately. The winning ticket being held by a member of the pool, petitioner received four-elevenths of the prize money. *840 It was held that the amount received constituted income to him. Cf. , and Christian H. Droge, decided this date, . A similar holding is made here as to the sum actually received by petitioner.
But respondent contends that petitioner should have included as part of his gross income not only the portion of the winnings which he actually received but also the portion retained by his wife. We do not agree with this contention.
The evidence shows that, while petitioner purchased the ticket with his own money, he registered it in the name of his wife, turned it over to her for safekeeping and at that time made an agreement with her that the proceeds received, if any, would be divided equally. The operators of the sweepstakes recognized her as the owner of the prize money; the money was sent to her, and she was required to sign the receipt therefor. Petitioner's right to receive any portion of it arose out of the collateral agreement between him and his wife which, though void and unenforceable (*841 ; ; ; ; ), was nevertheless specifically complied with. We are not called upon to adjudicate the rights of petitioner and his wife under the void contract, nor do we have petitioner's wife before us for determination of her tax liability, if any. The evidence shows, however, that she paid the Federal income tax upon the portion of the winnings which she retained after complying with the agreement which she made with her husband. We do not believe that the same amount should be taxed twice as income - once to the wife and once to the husband - and we decline to so hold. It follows, therefore, that the respondent erred in determining any deficiency against the petitioner.
The section of the revenue act, providing for the imposition of the fraud penalty, is section 293(b) of the Revenue Act of 1932. It reads as follows:
(b) FRAUD. If any part of any deficiency is due to fraud with intent to evade tax, then 50 per centum of the total amount of the deficiency*842 (in addition to such deficiency) shall be so assessed, collected, and paid, in lieu of the 50 per centum addition to the tax provided in section 3176 of the Revised Statutes, as amended.
It is obvious that, inasmuch as we have found that there is no deficiency in tax for the year in question, no fraud penalty can be imposed.
Reviewed by the Board.
Judgment will be entered for the petitioner.