Modjeski v. Commissioner

RALPH MODJESKI, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Modjeski v. Commissioner Docket No. 49517. United States Board of Tax Appeals 28 B.T.A. 1051; 1933 BTA LEXIS 1056; August 11, 1933, Promulgated *1056 1. The Delaware River Bridge Joint Commission is a governmental instrumentality of Pennsylvania and New Jersey. Leon S. Moisseiff,21 B.T.A. 515, followed. 2. Petitioner was an employee of the commission in 1927 and the compensation received by him is exempt from Federal income tax. James Craig Peacock, Esq., for the petitioner. C. A. Ray, Esq., for the respondent. GOODRICH *1051 The single issue in this proceeding is whether respondent, in making his determination of a deficiency in income tax of $1,283.89 for 1927, erred in including as a part of petitioner's income $5,000.18 received as compensation from the Delaware River Bridge Joint Commission. FINDINGS OF FACT. Petitioner, a resident of New York City, is an engineer and at the times here material was engaged in the practice of his profession, separately and as a member of at least four partnerships, maintaining offices in New York, Philadelphia, Chicago, and San Francisco. Since July 1, 1921, he has served as chief engineer and chairman of the board of engineers of the Delaware River Bridge Joint Commission, a governmental instrumentality of the States of*1057 Pennsylvania*1052 and New Jersey, created for the purpose of accomplishing the erection of a bridge across the Delaware River between the cities of Philadelphia and Camden. No member of the commission was an engineer. The positions of chief engineer and the board of engineers were established by the resolution of the commission (which is in evidence but need not be recited here in full), the chief engineer being made "directing head of the Engineering Organization, responsible to the Commission", and "to serve at the pleasure of the Commission." The duties of the position were prescribed in the resolution as follows: The Chairman and Chief Engineer shall devote approximately one-half of his time to the design and construction of the bridge and as much additional time as may be necessary for the proper conduct of the work, and shall be in full and complete charge of the design and erection of the structure in all its details. He shall organize a complete staff, subject to the approval of the Commission, and with its aid draw up plans and specifications for the various portions of the bridge in sufficient detail to enable contractors to bid. He shall assist the Commission*1058 in letting contracts. He shall direct the work in all its phases, both in the office and in the field. He shall have the power to dismiss subordinates, and to fill vacancies subject to the approval of the Commission. He shall have prepared estimates of cost and furnish such other information as may be required by the Commission. He shall call meetings of the Board of Engineers at such intervals as the work may require and consult with the members of said Board on all phases thereof, both as to plans and as to field work. He shall make monthly reports to the Commission in writing covering the progress and condition of the work. He shall be empowered to call on experts for temporary service whenever it may be advisable, subject to the approval of the Commission. It shall be his duty to approve and sign all requisitions for material required for the purpose of the Engineering Department and to prepare and sign all estimates for work done and submit same to the Commission for approval. The duties of the board of engineers were set out as follows: To advise the Commission on all matters pertaining to the project. They shall follow the progress of the work and*1059 keep themselves fully informed in regard thereto. They shall hold stated meetings each week and oftener when necessary. They shall meet at any time upon 24 hours' notice from the Chairman or the Commission. It shall be their duty to consider all designs, plans, and specifications prepared by or under the direction of the Chief Engineer and they shall approve in writing all contract(s) drawings and specifications. It is the purpose of the Commission in the appointment of the board of Engineers to obtain an expression of opinion of the individual engineers as to the engineering problems and features relating to the construction of the Bridge and it shall be the duty of the Board, in case any differences arise, to so report in writing to the Commission, setting forth the points at variance. *1053 It shall also be the duty of any one of the Board of Engineers to bring to the attention of the Board any plan or matter which, in his opinion, is of value to the work, for the consideration of his associates. A complete record of the meetings and proceedings of the Board of Engineers shall be preserved, This record shall be kept at the office of the Commission and shall*1060 be held at all times subject to the inspection of any member of the Commission. The Board of Engineers shall submit a full report of their proceedings in writing to the Commission monthly or when so requested by the Commission. Subject to that resolution, a part of which has been set out, and "during the pleasure of the Commission" petitioner was appointed at a salary of $2,500 a month, one fourth of which was to be paid by the Commonwealth of Pennsylvania, a like amount by the city of Philadelphia, and one half by the New Jersey Interstate Bridge and Tunnel Commission, and entered upon his duties. Under date of October 9, 1926, petitioner addressed a letter to the commission, reading in part as follows: By October 31st the work on the Delaware River Bridge will be so nearly completed that it will not need my attention excepting at the rate of three or four days a month during November and December and probably less often after the end of the year. I therefore hereby tender my resignation as Chief Engineer, to take effect October 31st 1926. The minutes of a meeting of the commission held on October 26, 1926, reflect action upon the matter in part as follows: RESOLVED: *1061 That the Joint Commission accepts the resignation of Dr. Ralph Modijeski as Chief Engineer at a salary of $30,000 a year, effective October 31st, 1926, and reappoints him at a salary of $5,000 a year with the title, powers and responsibilities of Chief Engineer. At the same meeting the commission approved the action of petitioner in releasing from service with the engineering department three individuals connected therewith in various capacities. At the beginning of 1927 the construction of the bridge had been practically completed. However, some of the contracts had not been entirely completed and petitioner had to look after them, make final estimates, and continue his supervision of the work. A problem arose respecting ventilation on an anchorage to which petitioner gave his attention, the work on that job being done by the commission's men. Minor difficulties such as rusting and loosening of castings and clamps were encountered and were corrected under petitioner's supervision. During this year petitioner devoted perhaps two days a month to his duties in connection with the bridge, and continued his regular reports to the commission. An office was maintained for him*1062 in the administration building at the bridge and such assistants as he needed were furnished him by the commission. He was carried on the pay roll of the commission. His duties were to look after the project and do whatever he or the commission found *1054 necessary to be done and he was subject to the call of the commission at any time. His proposals respecting administrative matters such as releasing of employees, letting of contracts, adjusting damages and the like, were considered by the commission, which generally adopted, but sometimes refused to approve, his recommendations. In 1927 petitioner was free to, and did, accept other employment and his gross earnings from his other professional efforts were in excess of $100,000. Following 1927, petitioner continued to discharge his duties; inspecting the bridge regularly, making his reports, directing the proper maintenance of the structure, and attending meetings of the commission. When impossible for him to attend the meetings, one of his partners attended as a substitute. He also planned and directed the work of connecting the Philadelphia Rapid Transit System with the bridge, a project which involved about $8,000,000, *1063 and for which he received no compensation beyond his regular salary. The plans for this work were drafted by employees in petitioner's private office and billed to the commission at cost. OPINION. GOODRICH: We have previously held that the Delaware River Bridge Joint Commission is a governmental agency engaged in carrying out an essential governmental function. . It is not claimed here that petitioner was an officer of the state, nor that, if an independent contractor, a tax upon his compensation would burden the state government. The fundamental question is, therefore, whether petitioner was an employee of the commission whose compensation is exempt from a Federal tax, as he contends, or whether he is an independent contractor upon whose earnings the tax may be laid, as respondent maintains. We know of no clear line of demarcation between these two classifications; the question must be determined in each case under the facts there obtaining, measured by the tests suggested by the many decisions bearing on this subject. We are of opinion that, upon the record before us, petitioner was not an independent contractor, but an*1064 employee of the commission. While his entire time was not given to the commission's work, he was employed, not for a single project, but, "subject to the pleasure of the Commission", over a continuous period. He was on the commission's pay roll and received a regular salary. All his expenses in connection with the work, and the compensation of his assistants, whether engineers or stenographers, were paid by the commission. And we are convinced that he was at all times under the control and direction of the commission. *1055 That is the point upon which respondent argues vigorously to the contrary. That Modjeski is a great engineer cannot be questioned. Respondent's counsel graciously acclaims him "the world's foremost bridge engineer" whose skill and learning have been universally recognized and honored. To list the tremendous projects in which he has been and is now engaged, as they are contained in the record before us, would be to enumerate the majority of the outstanding accomplishments in bridge construction in this country for many years past, and some to be completed in the future. While admitting that petitioner was subject to the control of the commission*1065 respecting matters of administration in connection with personnel and contracts, respondent's counsel points to petitioner's reputation and standing and declares it impossible that a body of laymen could exercise control and direction of an expert such as petitioner respecting the myriad technical and intricate details involved in the construction of this bridge. He insists that the commission retained no right to tell petitioner how his work should be done; that the duties which he was employed to discharge were beyond their capacity to direct, and demanded the exercise of his professional skill and judgment, beyond interference by the commission. We are content with the answer to that argument given by the resolution of the commission which prescribed the duties and terms of employment of its chief engineer. When appointing petitioner to that position the commission did not say to him simply, "Design and build for us a bridge." Rather, as we read those provisions, it made him responsible for the "design and erection of the structure in all its details," but it set up also a board of engineers whose duty it was to follow the progress of the work, to consider all the designs*1066 and plans of the chief engineer, to report to the commission any difference of opinion respecting the details of the work, and to keep a complete record of all its proceedings for the inspection and guidance of the commission. In other words, the members of the commission, realizing that they themselves were not engineers and lacked the technical knowledge necessary to maintain a check on the plans of the chief engineer, and his direction of the work, created a board of experts to do that for them and report to them, with the result that the final decision on important problems, whether of administration or engineering, lay in their power. That was the "control or right of control by the employer" which, as respondent points out, was laid as a test in differentiating between employee and independent contractor in . That such control was exercised by the commission with respect to matters of administration is conceded. Whether it was exercised with respect to problems of engineering, this record does *1056 not disclose. It may be that, because of petitioner's skill, experience, and application to his duties, the*1067 commission found it unnecessary to interfere with direction of the planning and erection of the bridge. This is immaterial. The important thing is that the right of control was maintained. Respondent further argues that petitioner was on a different basis of employment in 1927, after his resignation and reappointment, than he was during the time the bridge was under construction. But the "title, powers and responsibilities of Chief Engineer" which he reassumed have never been changed; they existed in 1927 as first set out, and petitioner did not escape them upon his reappointment. While less of his time was required than when the bridge was under construction (which accounts for the reduction in salary) petitioner remained at the command of the commission for as much of his time as might be necessary to perform properly the services demanded of him, whether consultation, the regular inspection of the bridge, preparation of his required reports, or the planning and supervising of repairs or additional construction. In our opinion, there was no change in the basis of his employment and the commission's right of control was continued. *1068 Respondent also argues that a determination that petitioner was an employee of the commission would be inconsistent with our decision in , wherein we held that Moisseiff was an employee of the commission, since it appeared that he was under the direction and control of Modjeski, its chief engineer. Such a result does not follow. Obviously one may supervise and direct the work of a subordinate, although himself an employee. Cf. ; ; affd., ; ; , and cases there cited. Judgment will be entered for the petitioner.