Mattox v. Commissioner

Ronald Mattox, Petitioner, v. Commissioner of Internal Revenue, Respondent Mattox v. Commissioner Docket No. 81 United States Tax Court 2 T.C. 586; 1943 U.S. Tax Ct. LEXIS 83; August 14, 1943, Promulgated *83 Decision will be entered under Rule 50. Income from certain contracts payable to petitioner was payable to him because he owned substantially all the stock of a corporation which was one of the parties to one of the contracts and a party in interest to the other contract. Held, payments made under such contracts to petitioner and by him paid over to his wife under prior assignments to her of "all of the income and profits accruing and to accrue to him" under such contracts, are taxable to petitioner, notwithstanding such assignments. Petitioner remained the owner of substantially all the stock of the corporation, and the payments which were made to him and which he turned over to his wife were in effect corporate distributions and petitioner is taxable thereon, except as to the small part of such distributions attributable to the three shares of stock owned by the wife. Glen H. Bell, Esq., for the petitioner. John D. Kiley, Esq., and Carroll Walker, Esq., for the respondent. Black, Judge. BLACK *586 The Commissioner has determined deficiencies in petitioner's income tax for the fiscal years ending June 30, 1938, 1939, *84 and 1940, in the amounts of $ 108.84, $ 230.13, and $ 208.13, respectively, only part of which in each year is in dispute. In his determination of the deficiencies the Commissioner made several adjustments to the net income as reported by petitioner on the returns which he filed for the respective taxable years. None of these adjustments are contested except that which relates to the addition to petitioner's net income of certain income paid to his wife, Louise Mattox, under certain written assignments which he had made to her prior to such payments. For the fiscal year ending June 30, 1938, respondent added $ 792.15 in this manner; for the fiscal year ending June 30, 1939, he added $ 918.12; and for the fiscal year ending June 30, 1940, he added $ 958.26. *587 In his deficiency notice the respondent explained the foregoing adjustments in the following manner: (a) It has been determined that income and profits received during the years ended June 30, 1938, June 30, 1939 and June 30, 1940 from contracts with Alvin H. Huth, Inc. and Richard V. Reineking, dated August 1, 1936 and April 22, 1938, respectively, represent taxable income to you under Sections 22 (a) and 182 of*85 the Revenue Acts of 1936 and 1938 and the Internal Revenue Code. Petitioner by appropriate assignments of error contests the foregoing action of the Commissioner. FINDINGS OF FACT. The petitioner is a certified public accountant who has practiced his profession for more than twenty years and he resides in Madison, Wisconsin. In 1927 the petitioner organized under the laws of Indiana "The Ronald Mattox Company," a corporation, to engage in the fraternity and sorority accounting business. It is a type of managerial accounting where the books of the fraternity or sorority are kept in the central office, and contracts were entered into with the fraternities or sororities. Petitioner has at all times since the organization of the company owned from 93 to 95 shares out of a total of 100 shares of the capital stock of such company; in addition he has been the beneficial owner at times of an additional share issued to another person to qualify him as a director of the company. Three shares of capital stock of the company during the taxable years in question were owned by petitioner's wife, Louise B. Mattox, and one share by petitioner's sister. From the time the corporation was organized*86 the petitioner has been its president. The petitioner's wife was elected vice president in 1938. The corporation maintained offices in both Bloomington and Lafayette, Indiana. Alvin H. Huth was hired by the Ronald Mattox Co. of Indiana to operate an office in 1928 and served as manager of that office until September 1936. Late in 1935 Huth became dissatisfied with the set-up. In the summer of 1936 it was agreed that a contract would be drawn up whereby Huth would take over the office and run it and pay a royalty on account of business which he was taking over. Thereupon a contract was entered into between the Ronald Mattox Co., Alvin H. Huth, Inc., Ronald Mattox, and Alvin H. Huth, whereby the Mattox Co. and Ronald Mattox "assigned and transferred to the Huth Company, all their rights, title and interest in, and to all fraternity, sorority, fraternity building association, and sorority building association accounting contracts within or for the city of Lafayette or the city of West Lafayette and Tippecanoe County, held *588 or controlled by the Ronald Mattox Company and Mattox." The contract further provided that the Mattox Co. and Mattox were not to solicit or maintain*87 and operate fraternity or sorority accounting service within the cities of Lafayette, West Lafayette, or Tippecanoe County, Indiana, for a period of 20 years. It was further agreed that all new contracts for this type of accounting were to be entered into with the Huth Co. All the accounting work was to be performed by Alvin H. Huth personally, or people directly under his control. Huth agreed to account to Mattox for all receipts and disbursements quarterly. The contract provided that Huth was to pay Mattox 20 percent for all net income received by Huth for fraternity, sorority, fraternity building association, and sorority building association accounting contracts within the cities of Lafayette or West Lafayette and Tippecanoe County for a period not exceeding 20 years, and 15 percent of all net income received by Huth from all public or other accounting done by him. All new fraternity or sorority contracts were to be entered into with Huth and Huth was to furnish Mattox a copy of all new contracts entered into. The contract further provided: 10. In the event of the death of Alvin H. Huth, or in the event that Huth should be disabled and unable to carry on his accounting practice; *88 or in the event that Huth should be guilty of gross neglect of his business or should be guilty of fraud in the practice of his business, or in the event that Huth should move away from Tippecanoe County, Indiana, and the immediate vicinity of that county so as to be unable to conduct his accounting practice in the cities of Lafayette and West Lafayette during regular business hours; then in any of such events this contract shall terminate and all of the stock of the Huth Company shall be assigned and transferred to Mattox for the total price of Twenty-five Dollars ($ 25.00). Prior to the transfer of such stock the corporate name of the Huth Company shall be changed to a new name which shall exclude the name of Alvin H. Huth, or any part thereof. The provisions of this Clause 10 shall be endorsed upon the face of all stock certificates of Alvin H. Huth, Inc. The contract signed by the Ronald Mattox Co., Alvin H. Huth, Inc., Alvin H. Huth, and Ronald Mattox, from which the foregoing findings are made, is in evidence as petitioner's Exhibit No. 2 and is incorporated herein by reference. On September 3, 1936, Ronald Mattox executed the following assignment to his wife, Louise Mattox: *89 Know all Men By These Presents, That Ronald Mattox of Madison, Wisconsin, hereby assigns, transfers, conveys and sets over unto Louise Mattox, his wife, all of the income and profits accruing and to accrue to him under an agreement dated August 1, 1936 and executed by The Ronald Mattox Company, an Indiana Corporation; Alvin H. Huth, Inc., an Indiana Corporation; Alvin H. Huth of LaFayette, Indiana, and Ronald Mattox. To Have and to Hold unto the said Louise Mattox, her heirs, executors, administrators and assigns forever. *589 An office was opened in Bloomington, Indiana, in 1927, with Carl G. Fuhrman in charge, who operated the office until the fall of 1936. Then Fuhrman decided to quit and the petitioner made an arrangement with Richard V. Reineking and to take over the management of the company in Bloomington. In 1938 the petitioner and Richard V. Reineking entered into a contract whereby the petitioner agreed to procure an assignment from the Ronald Mattox Co. to Reineking of all fraternity and sorority accounting contracts held by the corporation with fraternities and sororities in the cities of Bloomington, Indiana, and Green Castle, Indiana. Reineking agreed to*90 pay the petitioner for the year ending June 30, 1938, 50 percent of the first $ 2,000 of net income received by him and 10 percent of the balance of the net income received by him, with the understanding that the above $ 2,000 figure should be reduced $ 200 in each year thereafter until it had been reduced to $ 1,200, after which time the figure would remain constant. Reineking was to have the use of all the equipment in the Bloomington office owned by the Ronald Mattox Co. Under the terms of the contract with Reineking it was further agreed "that in the event Richard V. Reineking becomes unable for any reason to carry out the obligations of the fraternity accounting contracts or ceases to perform such contracts personally for any cause, or if said Richard V. Reineking is guilty of any negligence or fraud in connection with any of said contracts, or in his dealings with Ronald Mattox or the Ronald Mattox Co., then the assignment of all of said contracts to Richard V. Reineking shall terminate forthwith, and Richard V. Reineking agrees to do any act necessary or requested by Ronald Mattox to reestablish said contracts as the absolute property of the Ronald Mattox Co., and in any such*91 case Ronald Mattox may at once take over the performance of such fraternity contracts to protect his interest and the interest of the Ronald Mattox Co. therein." This contract was duly approved by the Ronald Mattox Co. The contract from which the foregoing findings are made is in evidence as petitioner's Exhibit No. 5 and is incorporated herein by reference. On February 21, 1940, Ronald Mattox executed the following assignment to his wife, Louise Mattox: Know All Men by These Presents, That Ronald Mattox of Madison, Wisconsin, hereby assigns, transfers, conveys and sets over unto Louise Mattox, his wife, all of the income and profits accruing and to accrue to him under an agreement dated April 22, 1938 and executed by Ronald Mattox and Richard V. Reineking. To Have and To Hold unto the said Louise Mattox, her heirs, executors, administrators and assigns forever. Louise Mattox was notified of the assignments to her of the income and profits from the Huth and Reineking contracts. Such income *590 and profits have been paid by Huth and Reineking to petitioner Ronald Mattox, and he in turn, since the date of such assignments, has paid the income and profits from them over*92 to Louise Mattox. All payments received by Louise Mattox under both the Huth and Reineking contract assignments have been reported in both her state and Federal income tax returns. No portion of the money received from the Huth and Reineking contracts by Louise Mattox has ever been used for household expenses. Petitioner has entirely supported his family since the date of the Huth and Reineking contracts and assignments. Petitioner has never engaged personally in the fraternity and sorority accounting business in the state of Indiana. He did a small amount of work in Indiana in the early years of the company, mainly in 1927, but all work which he did in Indiana was done for the company and as an officer of the company. Petitioner has in no way supervised either Huth or Reineking since their contracts were entered into. He has never audited their books or exercised any control over them since that time. Louise Mattox has substantial business interests other than her interests in the Huth and Reineking contracts. OPINION. The Commissioner in his determination of the deficiencies added to petitioner's net income for each of the fiscal years before us certain income which he*93 designated "Income with respect to Huth and Reineking contracts." As a matter of fact the assignment to Louise Mattox of the income and profits from the Reineking contract was not executed by petitioner until February 21, 1940. Only a small amount of the income and profits involved in this proceeding was paid over to Louise Mattox under this latter assignment and it was paid during the fiscal year ending June 30, 1940. Practically all the income involved in this proceeding was paid to Louise Mattox by her husband, the petitioner, under the assignment of the income and profits from the Huth contract, which assignment was executed September 3, 1936. However, the amounts of income involved in each of the taxable years is not in controversy and petitioner makes no point that there is any fundamental difference between the two contracts or the assignments of income or profits under them. Therefore, in the treatment of the question which we have to decide we shall not undertake to make any distinction between the income and profits which were paid to Louise Mattox under the two respective assignments which are in evidence. *94 The question which we have to decide is one which has often *591 troubled the Board of Tax Appeals, now the Tax Court of the United States, and likewise has troubled the Federal courts. The Supreme Court of the United States has decided several cases dealing with different phases of the subject. Some of these cases are ; ; ; . The above cited Supreme Court cases and other cases dealing with the subject are discussed by the parties in their briefs. It is clear from the facts as found in our findings that the instant case is not on all fours with any of the above cited Supreme Court cases. Petitioner argues that the assignments of income and profits from the Huth and Reineking contracts were similar to the assignments of income from trust property which were present in , and that that case is controlling in favor of petitioner. Respondent contends that the commissions or royalties which were payable to Ronald Mattox*95 under the contracts were payable either for personal services which he had rendered or was yet to render in the performance of the contracts and that the assignments of income and profits from the contracts are controlled by , and that petitioner is taxable thereon, even though such income and profits were payable to Louise Mattox under the assignments. It seems clear that such income and profits as were payable to Mattox under the terms of the contracts were not payable to him for any services which he had rendered or was to render under the terms of the contracts. Such fraternity and sorority accounting contracts as were transferred by the Ronald Mattox Co. to Huth and Reineking were the property of the corporation and not of Mattox as an individual. Any future services rendered in the performance of these contracts or other contracts which Huth and Reineking obtained were performed by Huth and Reineking and their organizations and not by Mattox as an individual. Therefore we doubt if *96 , is applicable under such circumstances. Petitioner strongly argues in his reply brief that the commissions or royalties, or whatever else the payments in question may be called, which were payable to Mattox under the contracts were not payable for any services of petitioner but were payable because of the interest the corporation owned in the contracts which it transferred to Huth and Reineking and for which the commissions or royalties were payable. We are inclined to accept this view of the nature of the payments. But when this view of the payments is accepted is , controlling as contented by petitioner? We think not. *592 It seems to us that the commissions or royalties which were to be paid by Huth and Reineking under the contracts were payments made for the corporation's property and business which they took over and that such commissions or royalties, or whatever they may be called, were in reality the income of the corporation, the Ronald Mattox Co. of Indiana. It is true that under the contracts the payments were to be made to Ronald Mattox as an individual and not*97 to the corporation. However, this is doubtless explained by the fact that Ronald Mattox owned substantially all of the stock of the corporation, and he seems to have treated it as his alter ago. Certainly the payments were not made to Mattox because of any patented system of accounting which he owned, because we do not understand that he claims to own any patented system of accounting. So it seems to us that we must regard the payments which were to be made to him under the terms of the contracts of being made because he was substantially the owner of all the stock of the corporation. In view of the matter the payments to be made to Mattox were in the nature of distributions from the corporation, cf. ; affd., , and would be taxable to petitioner even though prior to their receipt he had assigned them as a gift to Louise Mattox. This results from the fact that Mattox still remained the owner of his shares in the corporation. See ;*98 , on review by the Second Circuit. During the taxable years Louise Mattox owned in her own right three shares of stock in the corporation. Therefore, under the view we have expressed above as to the amounts which were paid to her in the respective taxable years, 3/100 were properly paid to her as a stockholder of the corporation and are properly taxable to her and not to petitioner. If we are wrong in our theory above expressed that the royalties or commissions, or whatever they may be called, were in reality first the income of the corporation and were only paid to petitioner because he owned substantially all the stock of the corporation, and if the correct theory is that they were in fact royalties or commissions properly payable to petitioner as an individual, nevertheless, we think that under the assignments which are present in the instant case the income in question would be taxable to petitioner. Cf. , on review by the Fifth Circuit. In reaching our decision we have not overlooked *99 , a case cited and relied upon by petitioner. We think that case is distinguishable on its facts from the instant case. Decision will be entered under Rule 50.