Hazlewood v. Commissioner

N. H. HAZLEWOOD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Hazlewood v. Commissioner Docket No. 61334. United States Board of Tax Appeals 29 B.T.A. 595; 1933 BTA LEXIS 920; December 15, 1933, Promulgated *920 Held that a partnership existed between the petitioner and his wife and two daughters during the taxable year. Sam E. Whitaker, Esq., for the petitioner. T. M. Mather, Esq., and R. H. Transue, Esq., for the respondent. SEAWELL *595 This proceeding involves the redetermination of a deficiency of $13,979.72 in income tax for 1929. The single issue is whether the petitioner is liable for tax on all of the net income of the partnership known as the Coca-Cola Bottling Co. of Danville, Virginia. FINDINGS OF FACT. By the provisions of an agreement executed June 1, 1926, the petitioner, a resident of Danville, Virginia, acquired from the Coca-Cola Bottling Co., a corporation having its general office in Chattanooga, Tennessee, hereinafter referred to as the "Chattanooga corporation", the right to bottle, and distribute in bottles, Coca-Cola in Danville, Virginia, and vicinity. The contract was unassignable without the written consent of the Chattanooga corporation and the Coca-Cola Co., a corporation of Atlanta, Georgia, hereinafter referred to as the "Atlanta corporation." The petitioner, operating *596 under the name of Coca-Cola*921 Bottling Co., exercised the rights conferred by the contract until December 31, 1928. On December 28, 1928, the petitioner, for a recited consideration of $1 and natural love and affection for the assignees, transferred to his wife and two daughters an undivided one-fourth interest each in the contract, subject to the written approval of the Chattanooga corporation and the Atlanta corporation. Concurrently with the execution of the assignment, the assignor and assignees agreed, in writing, to conduct business under the contract of June 1, 1926, as partners under the partnership name of Coca-Cola Bottling Co. of Danville, Virginia. Pertinent provisions of the articles of partnership follow: 4. The said partnership is to continue during the life of N. H. Hazlewood, or until dissolved by operation of law. But, upon dissolution arising from the death of any partner there shall be no distribution of partnership assets, but the surviving partners shall have the right and privilege to continue the business after the death of any partner, and within one year thereater may either purchase the deceased partner's share in the partnership from his or her personal representative, or admit*922 into the partnership as a new partner the purchaser of such deceased partner's share. The agreed value of the franchise and good will of the Coca Cola Bottling Co. of Danville, Va., as heretofore conducted by N. H. Hazlewood and the tangible personal property, machinery, and assets contributed by each partner is valued at $25,000 per share, or a total valuation of $100,000.00. 5. Each partner shall be entitled to have and receive a one-fourth share of the annual net profits accruing from the conduct of said partnership business. 6. The partners shall not have equal rights in the management and conduct of the partnership business during the life time of the said N. H. Hazlewood, but during this period the right to manage and conduct the partnership business shall be vested solely and exclusively in the said N. H. Hazlewood. During his life time the said N. H. Hazlewood shall receive such remuneration from the partnership for his services in the partnership business as may be reasonable and just in view of the extent and value of the services rendered the partnership and his annual compensation shall be such an amount as may be agreed upon from year to year between said*923 N. H. Hazlewood and any two of the other partners. The compensation of the said N. H. Hazlewood for the calendar year 1929 shall be $6000.00, plus 20% of the net profits of the business after deducting his salary as an item of expense. The annual salary and percentage payable to N. H. Hazlewood shall be deducted from profits before there is any division among the partners of any net profits. Until expressly agreed by all partners no other partner shall receive any compensation for services rendered the partnership. On December 31, 1928, the petitioner transmitted the instrument of assignment to the Chattanooga corporation with the request that it and the Atlanta corporation consent to the transfer. The Atlanta corporation consented to the assignment in a letter dated January 8, 1929, addressed to the Chattanooga corporation, and the Chattanooga corporation consented to the transfer in a letter dated January 10, *597 1929, addressed to the petitioner. In August 1931, at the request of the petitioner, the corporations approved the transfer by endorsements on the instrument of assignment. At or about the time the Chattanooga corporation formally consented to the transfer, *924 its president informed the petitioner by letter that he "had always considered my letter of January 10th, 1929, to you as a consent to your assignment to your wife and daughters of a one-fourth interest, each, in your franchise." The Atlanta corporation informed the Chattanooga corporation in a letter dated August 11, 1933, that "we have always regarded our letter of January 8, 1929, as equivalent to such formal consent." The petitioner's wife and daughters contributed no property or services to the partnership other than their interest in the contract of June 1, 1926. The books kept by the petitioner for the business he conducted as an individual under the name of Coca-Cola Bottling Co. showed merely personal withdrawals, inventories, payrolls, and accounts receivable. The partnership continued the use of such books of account. They did not at any time in 1929 contain a capital account or an investment account for the partners. The petitioner, with the knowledge of his wife and one of his daughters, withdrew practically all of the net profits of the partnership in 1929 for the purpose of acquiring a new home for himself and family. Almost all of the funds so withdrawn were*925 used for such purpose. The deed for the real estate acquired with the money was executed in favor of the petitioner and his wife. In 1931 the petitioner gave his partners notes for their distributable share of the net profits of the partnership in 1929. The notes have not been paid. For the year 1929 the partnership filed a return showing net income of $75,457.81, distributable in equal amounts to the petitioner, his wife, and two daughters. The respondent, by adjustments not in controversy, increased the net income to $77,577.75, all of which he held was taxable to the petitioner on the ground that no partnership existed between the petitioner and his wife and two daughters during 1929. OPINION. SEAWELL: The amount of distributable net income of the partnership is not the subject of controversy. The contention of the respondent that no partnership existed between the petitioner and his wife and two daughters in 1929 is based primarily upon the assumption that the Chattanooga corporation and the Atlanta corporation did not give their consent to the assignment of undivided interests in the June 1, 1926, contract until August 1931, more than a year *598 and a half*926 after the close of the taxable year. The premise is not supported by the record. Promptly upon the execution of the assignment the petitioner sought the approval of the necessary parties to the conveyance and in doing so transmitted to them the original instrument of transfer. It would appear that the assignees executed an assignment of their interests in the contract to the partnership. In its letter of January 8, 1929, to the Chattanooga corporation, the Atlanta corporation expressed the opinion that the transfer from the assignees to the partnership was unnecessary and stated that "only the transfer from Hazlewood to his wife and daughters is necessary. He may then form a partnership with them, or take them into his present business. This transfer should include a space thereon for approval by your company and The Coca-Cola Company." In transmitting the letter of the Atlanta corporation to the petitioner the Chattanooga corporation informed the petitioner that "The parties, if they own a one-fourth interest in the contract can simply operate as a partnership. If you desire to handle the matter in that way, simply the first assignment of a one-fourth interest in the contract*927 by you to the other parties is all that is necessary." The petitioner concluded that the letters written by the Chattanooga and Atlanta corporations contained their consent to his transfer of interests in the contract and made no effort to obtain the formal consent of the corporations on the instrument of assignment until August 1931. Formal approval was then made promptly by both corporations with the statement that they regarded their letters written in January 1929 as equivalent to formal consent to the assignment. There is not a word of objection in the letters of the corporations to the assignment. Both show agreement to the petitioner's action. Any doubt about the intent thereof is completely eliminated by the letters of the corporations written in August 1931. We think there is ample justification for our finding of fact that the letters of the Atlanta and Chattanooga corporations dated, respectively, January 8 and 10, 1929, contain their consent to the assignment made by the petitioner on December 28, 1928. The intention and agreement to form a partnership is shown beyond question by the partnership articles. *928 The laws of Virginia are not against the formation of a partnership between husband and wife. . Where the partners provide for sharing profits without an expression of how losses shall be borne, nothing appearing to the contrary, as here, the law will imply an agreement to share losses. ; ; ; . Neither is it essential *599 that all the partners contribute services to the enterprise. The fact that the petitioner withdrew practically all of the net income of the partnership during the taxable year is not fatal to the petitioner's claim. At least two of his partners had actual knowledge of and gave their express or implied approval to the withdrawals in excess of his share of the profits. It appears to have been regarded at the time as an advance, and not a modification of the partnership articles as to a division of the profits. This, we think, is shown by the fact that in 1931 the petitioner gave his partners notes for the amount of their distributable*929 share of the income. The notes have not been paid, but we find no reason in the record to question the bona fides of the transaction. We are of the opinion, and so hold, that the assignment of December 28, 1928, was valid and in effect throughout 1929 and that a valid partnership existed between the petitioner and his wife and two daughters during the taxable year. It follows that the respondent erred in taxing the petitioner on the net income of the partnership in 1929 in excess of the share provided for him in the partnership articles. ;; affd., . Decision will be entered under Rule 50.