*860 A salary paid by a wife, who is manager of a hotel in Massachusetts owned by her and her sisters, to her husband employed by her as her assistant, held deductible by the wife as an ordinary and necessary business expense.
*995 The Commissioner determined a deficiency of $463.28 in petitioner's income tax for 1931. He disallowed a deduction of $4,000 taken by the petitioner on her separate return as ordinary and necessary business expense. The ground stated by the Commissioner for the disallowance was that it represented an amount paid by petitioner to her husband as salary, and that in Massachusetts a contract between husband and wife is not enforceable, and that the unreported memorandum decision of the Board in Richard W. Hale, recognizing a transaction between husband and wife in Massachusetts, was not accepted by the Commissioner as the law.
FINDINGS OF FACT.
The petitioner, with her two sisters, owned and operated a hotel at West Harwich, Massachusetts. Petitioner had long been the manager of the enterprise. In 1931 she needed*861 assistance in her management of the hotel, and sought the approval of her sisters for the employment of her husband in that capacity. Her sisters objected to having the husband employed by the joint enterprise, but acceded to the payment to the petitioner herself of $10,000 for her services, with the full realization that the petitioner would individually *996 employ her husband as associate manager. This the petitioner did, and as compensation for his services she paid her husband $4,000 in 1931. This amount was reasonable compensation for the services which he performed.
OPINION.
STERNHAGEN: The evidence is all one way, and leaves no room for question. The petitioner is actively engaged in business as the manager and part owner of the hotel. It was necessary, in order that she should properly conduct her business, that she employ an associate manager, and this she did. Apparently her husband was the most satisfactory person for her to employ. As to this, her judgment is wellnigh final. Certainly in this record there is no reason to question its soundness. It was also her judgment that $4,000 was reasonable compensation for his services. This is supported by*862 what evidence there is in the record. Later the husband was paid $5,000 by the joint enterprise, with the approval of the sisters. The record, therefore, fully supports the fact that this was an ordinary and necessary business expense of the petitioner.
As a matter of law, the deduction comes clearly within the Revenue Act of 1928, section 23(a), and since , there is no room for question as to the propriety of recognizing a contractual payment from one spouse to another as legal. This has been held to apply equally to a salary paid by a wife to a husband, both residents of Massachusetts, (petition for review dismissed, ).
Judgment will be entered for the petitioner.