Coombs v. Commissioner

J. HOWARD COOMBS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Coombs v. Commissioner Docket Nos. 28774, 32875. United States Board of Tax Appeals 20 B.T.A. 1021; 1930 BTA LEXIS 1982; September 26, 1930, Promulgated *1982 The evidence does not establish that the Commissioner erred in including in the petitioner's income the total profits derived from a business during the years in question, which business was alleged to have been carried on by the petitioner and his wife as a partnership. S. Rusling Leap, Esq., for the petitioner. T. M. Mather, Esq., for the respondent. MURDOCK *1021 The Commissioner determined deficiencies of $6,897.41, $3,058.49, and $3,033.12 in the petitioner's income taxes for the calender years 1922, 1923, and 1924, respectively. The petitioner alleges that the Commissioner erred in including in his income all of the profits arising from a business alleged to have been operated as a partnership by himself and his wife. The cases were consolidated. FINDINGS OF FACT. The petitioner is an individual residing in Paulsboro, N.J. He was married on September 24, 1902. At that time he was employed by the C. H. Shoemaker Lumber Co. in Ocean City, N.J. He had practically no money. His wife had $500, which was used in building a house in Ocean City. They lived there for about three years, after which they moved to Philadelphia and*1983 remained there for about the same length of time. In 1907 or 1908 the petitioner became associated with C. H. Shoemaker and T. H. Goslin in a lumber business at Wildwood, N. J. Business was commenced under the name of the J. H. Coombs Lumber *1022 Co. The petitioner's share of the capital in the business amounted to $1,000, which was borrowed from a bank on a note made jointly by himself and his wife. Thereafter, the house in Ocean City was sold and the proceeds were applied against the note. For the next three years the petitioner's wife was employed as a bookkeeper by the J. H. Coombs Lumber Co. At first the petitioner and his wife received salaries of $15 and $7 per week, respectively, and as the business prospered, these amounts were increased. The petitioner's wife maintained a separate bank account. Any money that either the petitioner or his wife could save was used to pay off the balance of the $1,000 note. The interest of the petitioner's wife in the business of the J. H. Coombs Lumber Co. was carried on the books of that company as a "loan account." Later, branches of the business were established at Penns Grove, Stone Harbor, and Paulsboro, N.J. In 1919*1984 the petitioner, Shoemaker, and Goslin agreed to dissolve the J. H. Coombs Lumber Co., and, in accordance with a further agreement, the petitioner took over the lumber yards at Penns Grove and Paulsboro. He surrendered his stock in the company to Shoemaker and Goslin, and moved to Paulsboro with his wife. Business was commenced there under the name of the J. Howard Coombs Lumber Co. In 1919 or 1920 the petitioner filed a "Certificate of fictitious name" with the State of New Jersey as "J. Howard Coombs, sole trader, operating as the J. Howard Coombs Lumber Company." This certificate was not changed until 1924, or later. In the fall of 1922 the petitioner's wife suggested to him that they should have some agreement between them with respect to their interests in the J. Howard Coombs Lumber Co., and that there should be some showing as to the amount of money that she had put in the business. At that time the petitioner told her that he was going to make her a partner and give her one-half the business. Thereafter, the following notation was made on the company's books: J. Howard Coombs Lumber Company, consisting of J. Howard Coombs and Elizabeth M. Coombs. At the same time*1985 the "loan account" of the petitioner's wife, which acording to the books of the company amounted to $17,441.83 in December, 1922, was transferred to a "capital account." In the fall of 1924 the petitioner and his wife entered into an agreement, which was in part as follows: WHEREAS, ELIZABETH M. COOMBS, the party of the second part, had prior to December, 1921, advanced divers large sums of money to J. Howard Coombs, in connection with the operation of lumber business at Paulsboro, and at other South Jersey points, and in December, 1921 agreed to allow the loans that she had made to the business, to remain as capital, with the understanding that *1023 she was to receive an equal share in the profits of the business with the said J. Howard Coombs from January 1st, 1922, which loan account in December, 1921, amounted to approximately $17,418.40; AND WHEREAS, at that time, said loan account was transferred upon the books of the company to capital account and was considered equally the property of J. Howard Coombs and Elizabeth M. Coombs; AND WHEREAS, since that time the additional investments and withdrawals of the parties hereto have been credited and debited to the joint*1986 account; AND WHEREAS, on December 31st, 1921, it was agreed that the capital account, as stated at that time, be divided equally between the party of the first part and the party of the second part, and the separate capital accounts be set upon the books of the company. And it was further agreed at that time that all withdrawals and additional investments prior to that date were to be considered by the party of the first part and the party of the second part, share and share alike. NOW THEREFORE, THIS AGREEMENT WITNESSETH, and it is mutually agreed as follows: 1. That the parties hereto shall, as partners, engage in and conduct the business of buying and selling hardware, lumber and mill work and all kinds of building supplies at wholesale and retail. 2. That the name of the partnership as heretofore, shall be J. HOWARD COOMBS LUMBER COMPANY. 3. That the term of the partnership which began January 1st, 1922, shall continue for a period of ten years from that date. * * * 10. That each party shall be entitled to draw such amount each week from the funds of the partnership as shall from time to time be agreed upon between them. 11. (a) That at the end of each*1987 calendar year, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained, and the net profits, or net loss, of the partnership shall be fixed and determined. (b) That the net profits, or net loss, shall be divided equally between the parties hereto, and the account of each shall be credited, or debited as the case may be, with his or her proportionate share thereof. (c) That, at the termination of this partnership, by the expiration of its term, or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; (d) That the debts of the partnership shall be discharged; and all moneys and other assets of the partnership, then remaining, shall be divided in specie, between the parties, share and share alike. * * * This Agreement is the same Agreement that was entered into by and between the parties on December 31, 1921, and is hereby reduced to writing for the convenience of the parties. During the years in question the petitioner's wife performed no regular services for the company. Occasionally she substituted*1988 as bookkeeper when an employee was ill; and when the petitioner was away, she was some times consulted with respect to the business by employees of the company. On December 31, 1923, the capital accounts of the petitioner and his wife, as shown by the books of the J. Howard Coombs Lumber *1024 Co., were $117,077.21 each. The petitioner's wife never withdrew any of her funds from the business. In October, 1926, the company was incorporated, and the stock was issued in equal shares to the petitioner and his wife. In the years 1922, 1923, and 1924 the petitioner reported his income on individual returns, including therein a salary from the J. Howard Coombs Lumber Co. and one-half of the remaining profits. The petitioner's wife reported the other half of such income in each of the years in question. No partnership returns were filed for any of such years until 1927. Upon audit of the petitioner's returns, the Commissioner charged all of the income of the J. Howard Coombs Lumber Co. in each of the years in question to the petitioner. For the year 1922 it was agreed that if the petitioner was required to report only one-half of the income from the business, after deducting*1989 a salary which he received in that year, the amount of the deficiency would be settled under Rule 50, taking into consideration certain other adjustments made by the Commissioner which are not contested by the petitioner. For the years 1923 and 1924 it was agreed that if only one-half of the income of the business, after deducting the petitioner's salary, is taxable to the petitioner, then there are no deficiencies for those years. OPINION. MURDOCK: The question to be determined is whether the petitioner is liable for tax upon the total net income derived from the J. Howard Coombs Lumber Co. in the years 1922, 1923, and 1924; or whether his wife properly reported one-half of such income as taxable to her. We will assume, as is contended by the petitioner, that the laws of New Jersey do not preclude husband and wife from entering into a valid agreement of partnership. It is alleged in the petition, and recited in the written partnership contract, that the petitioner and his wife entered into an oral agreement of partnership in December, 1921. At the hearing counsel for the petitioner admitted that the date was erroneous, and that the true date of the alleged oral agreement*1990 was December, 1922. It is contended that under that agreement the business was to be considered as a partnership as of January 1, 1922. In , the court defined a partnership as follows: The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits. *1025 It was held, and this is concurred in by the New Jersey courts, that the mere sharing of the profits of a business is not sufficient to establish a relation of partnership. See ; ; ; ; ; ; ; ; . In *1991 , the court said: * * * A person not actually engaged in the business as a principal, and not holding himself out as a partner, cannot be held for debts contracted in the business, as a dormant partner, unless in virtue of some contract, express or implied, on his part, in legal effect creating, as between him and the persons carrying on the business, the relation of principal and agent. In , the court made the following quotation from Holmes v. Railroad Corp., 5 Gray (Mass.) 58: * * * It is no longer true that receiving one-half the profits, or one-half the net profits, arising from articles manufactured and sold, or resulting from business in which one furnishes the stock in trade and another performs the labor, necessarily creates a partnership. It is always competent to look at the particular circumstances of the case, and ascertain thereby whether it may not be merely a compensation to a party for his labor and services, or for furnishing the raw materials, or a mill privilege, or a factory, from which the other is to earn the profits. *1992 In the instant case the evidence fails to establish a valid oral agreement of partnership in 1922 or at any other time. It is true that in December, 1922, the petitioner told his wife that he was going to make her a partner, and that subsequently her account with the company, which had been carried on the books as a loan account, was changed to a capital account. On cross-examination, however, the petitioner's wife testified that she had always "had an interest in the business," and further testified that no different situation with respect thereto existed in 1922 and subsequent years than had existed previously. She testified that she "held herself out to the public" as a partner, but on cross-examination this testimony was weakened, and there is evidence tending to show the contrary to be true. In , we said: * * * When the taxpayer undertakes to avoid this tax, it is not too much to require his oral statement to be substantiated by evidence of facts and circumstances reasonably signifying that a partnership genuinely exists. This is especially true when the alleged partners are members of the same family and household. As in*1993 other cases where tax liability has been affected by close family relations, the statements, acts, and circumstances must all be considered and subjected to special scrutiny. . See also . The evidence here fails to establish any agreement to share the losses of the business; or that a relation of mutual agency existed between the parties; or that the petitioner's wife had any authority *1026 to act, or did act, in the name of the partnership. The written agreement came too late to affect the years before us. In any event, it contains at the most a recital of the conclusion that a previous oral contract of partnership was entered into, which conclusion was the subject of proof. It has not been substantiated by evidence sufficient to overcome the presumptive correctness of the Commissioner's determination. The case of , and other cases cited by the petitioner, are distinguishable on their facts from the instant case. Judgment will be entered for the respondent under Rule 50.