Krull v. Commissioner

FRANCIS KRULL, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Krull v. Commissioner Docket No. 16985. United States Board of Tax Appeals 10 B.T.A. 1096; 1928 BTA LEXIS 3969; February 29, 1928, Promulgated *3969 Petitioner and his wife, residents of California, agreed to contribute all their separate funds to a joint account and to divide the profits from investments equally as separate property, but that each should be entitled to receive as separate property compensation for services. Held, that the agreement should be given effect and the profits and compensation received by the wife should not be included in the petitioner's taxable income. Irving H. Frank, Esq., for the petitioner. J. W. Fisher, Esq., for the respondent. TRAMMELL *1097 This is a proceeding for the redetermination of a deficiency in income tax in the amount of $3,291.48 for the calendar year 1921. The deficiency arises on account of the action of the respondent in including in the taxable income of the petitioner amounts which had been reported by petitioner's wife in her separate return on account of compensation paid to her and on account of earnings derived from the sale of property. FINDINGS OF FACT. The petitioner is a resident of San Francisco, Calif. During 1921 he was married and living with his wife, M. Agnes Krull. They were married on September 1, 1913. *3970 Some time prior to their marriage they entered into an oral agreement, to become effective after marriage, whereby it was agreed that all the funds which both of them had were to be put and kept in a joint account and that thereafter when investments were made therefrom, the profits derived should be divided equally between them as their separate property and that each would be entitled to any salary, wages or compensation which was earned during marriage as his or her separate property. Pursuant to this agreement, after the marriage had been consummated a joint bank account was established into which both the petitioner and his wife transferred all the funds which each of them had, practically all of the petitioner's property being in cash. Thereafter, in 1915, the petitioner and his wife entered into a contract with two other persons whereby the petitioner and his wife agreed to purchase a section of land in Fresno County, California, to be sold by the other parties to the agreement and the profits were to be divided, after allowing a commission to the persons selling it, equally between the parties; that is, one-fourth to Mrs. Krull, one-fourth to the petitioner, and one-fourth*3971 each to the other two parties. Mrs. Krull took an active part in negotiating and carrying on this transaction and again on May 10, 1920, the petitioner and his wife entered into a contract with a third person for the sale of the tract of land which the petitioner and his wife had purchased in their joint names with their joint funds. It was agreed in the latter contract that one-half of the profits would be divided between the petitioner and his wife, and the other half would belong to the other party to the contract. Mrs. Krull took an active part in this transaction and in addition to her profits she was to receive a salary of $50 per month for handling collections and other services she might render until the time of settlement under the contract. *1098 The property was purchased in a tract which was subdivided and sold on the installment plan, payments being received over a period of years. The petitioner was United States Commissioner, having his office in San Francisco, and paid his wife, during 1921, the sum of $2,000 for services performed for him in that office. The compensation paid her was reasonable in amount for the services rendered. The petitioner's*3972 wife received a salary of $50 a month, not only under the contract dated May 10, 1920, but also in connection with her services rendered in the sale of the land purchased pursuant to the contract of May 21, 1915. The petitioner's wife reported in her separate return for 1921 the $2,000 paid to her as salary by the petitioner, $900 as salary received under one of the contracts, and $875 net compensation under the other contracts. She also reported on her separate return the amount of $14,862.11 as profit from the sale of real estate during the year and $235.21 as income from a grain crop, making a total gross income of $19,286.62 reported on her separate return. This amount included the $414.30 which she reported as income from interest on bank deposits, notes, mortgages and corporation bonds. The respondent determined that all of her income should have been included in the petitioner's return and imposed the tax accordingly, except that he omitted therefrom the amount of $414.30. The petitioner's wife claimed an exemption of $1,000, which left no taxable income in so far as she was concerned according to the Commissioner's determination. In his return the petitioner reported*3973 compensation received by him as United States Commissioner in the amount of $6,703.05, less $2,300 which included the $2,000 paid to his wife as compensation and $300 which he had paid to another individual as compensation. He also reported $14,862.11 as profits from the sale of real estate and $235.21 as income from a grain crop, and other items which made a total of $20,327.37. Both the petitioner and his wife reported in separate returns the amount of compensation each had received and each reported one-half of profits from the sale of real estate which was paid for with joint funds and sold pursuant to the contracts hereinabove mentioned. OPINION. TRAMMELL: The petitioner claims that pursuant to the contract which became effective upon his marriage, his wife is entitled to one-half of the income derived from the sale of real estate and other investments made with their joint funds and the compensation which she received for services as her separate property, and that such income should not be taxable to him. *1099 The profits derived from the real estate transaction were divided pursuant to contracts in writing made and executed by the petitioner and his wife*3974 with other persons. The petitioner's wife took an active part in carrying on the negotiations and was a party to the contracts of purchase and sale. The parties to the contracts of purchase and sale agreed that Mrs. Krull should have a stated share of the profits to be derived from the sale of the real estate involved. The profits were not given or transferred to her by the petitioner. Petitioner and his wife both had funds or other property at the time of marriage. This property under the California law was their separate property. This property was contributed to a joint fund from which investments were made resulting in the profits here involved. These profits it was agreed should be the separate property of petitioner and his wife, and it was also agreed that the compensation for services which each should receive should be the separate property of each. It is clear that under the California law the husband and wife domiciled in that State may freely and legally contract with each other with respect to either their separate or their community property and that it would be competent by appropriate agreement between them to constitute the earnings of the wife her separate*3975 estate. Secs. 159, 160, Civil Code; ; ; ; . In our opinion the agreement set out in the findings was made and it was perfectly legal and binding on the parties. The real question here is whether the income first became impressed with the community property status so as to subject it to the tax on that status as the income of the husband under the decision in the case of . We are of the opinion that it was not. The situation here is materially different from that which existed in the case of In that case the husband and wife were both employed and received compensation. The court said: In essence his [the Commissioner's] contention is that at most the agreement here was for an assignment by each of the parties of one-half of his or her earnings to the other - that at the instant they were received, the salaries were by the law impressed with the status of community property*3976 and were taxable with reference to that status * * *. In this view we concur. The court further stated: * * * Shortly after their marriage, they had an understanding, not that the earnings of each should constitute the separate property of the earner, but that the earnings of both should be contributed to a common fund of which they were to be the owners share and share alike. *1100 In that case there was an assignment of half the earnings of each to the other. In that state of facts the earnings of each first became impressed with the community property status before it became the property of the other. Here there was no assignment of earnings from one to the other. The earnings which were by the contract to become the separate property of each were the earnings of the earner. The wife's earnings from investments of the joint funds were her earnings. Separate property of the wife and of the husband at the time of marriage or that subsequently acquired by gift, devise or descent remains separate property. Secs. 162, 163, Civil Code of California. The joint fund which was made up of the separate funds of each was not converted into community property. *3977 Section 160 provides that a husband and wife may hold property as joint tenants or tenants in common. To the extent that the wife's interest in the joint fund exceeded her contribution thereto it was a gift by the petitioner. The gift, however, was of the corpus in 1913 and not income during the taxable period or at any other time. Giving effect to the contract between the parties and considering all the facts, it is our opinion that the income received by the petitioner's wife from the investments of the joint fund and as compensation for her personal services outside of the family relationship should not be included in the petitioner's taxable income. Secs. 159, 160, Civil Code of California; ;;;; ; , and . The income received by the wife under the circumstances here did not become impressed with the community status. Reviewed by the Board. Judgment will be entered*3978 on 15 days' notice, under Rule 50.