Dyer v. Commissioner of Internal Revenue

Decision Date09 March 1954
Docket NumberNo. 36-40,Dockets 22677-22681.,36-40
Citation211 F.2d 500
PartiesDYER et al. v. COMMISSIONER OF INTERNAL REVENUE.
CourtU.S. Court of Appeals — Second Circuit

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Before CLARK, FRANK and HINCKS, Circuit Judges.

Alger B. Chapman, Brady O. Bryson, Walter W. Walsh, Arthur K. Mason and David S. Smith, New York City, for petitioners.

H. Brian Holland, Ellis N. Slack, A. F. Prescott and I. Henry Kutz, Washington, D. C., for respondent.

FRANK, Circuit Judge.

Lucas v. Earl1 plus Burnet v. Leininger2 plus Helvering v. Clifford3 and Helvering v. Horst,4 as viewed by many judges who decided family-partnership cases5 in the light of Commissioner of Internal Revenue v. Tower6 and Lusthaus v. Commissioner of Internal Revenue,7 added up to the sort of conclusion that would have defeated the taxpayers here. But judicial arithmetic, especially in tax matters, can be tricky, as some "inferior" judges learned8 when they read the subsequent unanimous opinion in Commissioner of Internal Revenue v. Culbertson.9 This court, after so reading, said, in Slifka v. Commissioner of Internal Revenue, 2 Cir., 182 F.2d 345, 346, that the test in cases such as this is "whether an association, or joint venture, which satisfies all formal requirements and may be valid as between the parties, has been created to promote the conduct of their business in any other way than by reducing taxes. That this makes motive a test of tax liability is true enough;10 but it is equally true that it makes it so only when the reduction of taxes is the sole motive. That does not mean that `business' may not be so conducted as best to keep down taxes; but it does mean that keeping down taxes is not of itself `business'." With Culbertson in mind, this court again in Levin v. Commissioner of Internal Revenue, 2 Cir., 199 F.2d 692, remanded to the Tax Court, for further findings, a case in which that court had held against the taxpayer on the erroneous assumption that, absent active participation in the business, there could be no partnership taxwise.

Those decisions of our court, together with Sommers v. Commissioner of Internal Revenue, 2 Cir., 195 F.2d 680, serve as our guides here. For Judge Van Fossan rested his basic conclusion — i.e., that the "women" did not "earn the income" — on his determination that, under the contracts, they "contributed nothing." We consider that determination mistaken, for these reasons:

As between the partnership and these women, the contracts legally obligated each of the women to bear a risk of loss up to $5,000. There is evidence (1) that each had enough assets to meet such a liability and (2) that, when they executed the contracts, a real and substantial risk of loss existed;11 and the judge found nothing to the contrary. Thus, under "local law," as between the women and the partnership, the women and the partnership became parties to a new, separate and distinct arrangement known as a "joint venture." That venture concerned not many future enterprises but only the sale of a limited quantity of sugar syrup; consequently, it was by its nature to have a short duration; and its chief element was a commitment to a considerable financial risk, since it called for little capital or skill in its operations. True, the partnership, in addition to its sharing in the risk, contributed some necessary capital for a brief interval, and it performed some slight necessary services. But, bearing in mind that the partnership did not contribute to the joint venture its compensation for its selling services,12 those facts do not negative the important fact that the women, under their contracts, assumed a part of that financial hazard which constituted the major factor in the joint undertaking. It follows that — if one does not peer behind the contracts — these women did contribute something substantial.

It will not do to say that such a contribution must invariably take the form of tangible property; for, under Culbertson, an intangible — such as a promissory note, an endorsement of a note, a guaranty, or an indemnity against loss — will suffice.13 Significantly, the Commissioner so recognized in not seeking to deny the reality of the contribution of Viola Hollriegel, an employee of the old partnership who was in no way related to any of the partners. Indeed, the Commissioner's attitude toward taxability to her of her share of the profits goes to show that, if the other women similarly had had no familial ties to any of the partners, the profits allotted to those women could not have been treated as anything but part of their taxable incomes, respectively. So that the crucial question comes to this: Where there were family relationships, are the contracts to be deemed tax-evading devices?

As one shifts from a non-tax to a tax "universe of discourse," "reality" often becomes a "sham," a "subterfuge," or "a camouflage";14 cream is regarded as skim milk masquerading; a giant shows up as a windmill.15 On that account, in the context of "tax law," with its distinctive perspective, frequently depriving men's acts of the accent of reality, many husband-wife arrangements justify raised eyebrows. But the Culbertson case (as we have interpreted it in our decisions above cited) teaches that such skepticism will not transform a family partnership or joint venture, legally valid in other contexts, into a legal sham vis a vis taxes, unless the Tax Court, considering the entire situation, makes an explicit finding of a lack of "good faith."

The government insists that Burnet v. Leininger, 1931, 285 U.S. 136, 52 S.Ct. 345, 346, 76 L.Ed. 665, must control the decision here. We do not agree. There the taxpayer entered into a contract with his wife purporting to constitute her his equal "partner" in his interest in an active partnership of which he had been a member for the 22 previous years, and she agreed to assume liability for one-half the losses he might bear as a member of that existing partnership. His other partners did not consent to this arrangement, and no recognition of her status appeared on the books of the 22-year-old partnership which continued to pay the husband the same percentage of profits as theretofore and made no payments to the wife. The wife contributed nothing whatever to the previous partnership and took no part in the conduct of its business; there was created no new, separate, joint venture between husband and wife; there was never any formal accounting between them. On these facts, the Supreme Court sustained the Board of Tax Appeals which had held the husband taxable on the whole of the income earned as his share of the old partnership. The Supreme Court said: "Upon the facts as found, the agreement with Mrs. Leininger cannot be taken to have amounted to more than an equitable assignment of one-half of what her husband should receive from the partnership, she in turn agreeing to make good to him one-half of the losses he might sustain by reason of his membership in the firm. * * * (The) right of the wife was derived from the agreement with her husband and rested upon the distributive share which he had, and continued to have, as a member of the partnership." Notably, had the husband incurred a loss, he alone could have held his wife liable, whereas in the case at bar, the obligation of each woman ran not to her husband alone but to the partnership. Moreover, here the heart of the specific joint venture was the taking of risk of loss in which the women shared; there was no like fact in the Leininger case, nor there did the evidence show that the wife was financially able to make good any loss, i. e., that she gave any collectible obligation as consideration for the assignment to her. Cf. Rupple v. Kuhl, 7 Cir., 177 F.2d 823, 826. Finally, and above all, the Supreme Court had not yet required, as it later did in Culbertson, that there be an explicit finding, as a fact,16 of lack of good faith intention before an apparently valid joint venture agreement could be ignored.

The judge here made no such finding. Had he done so, basing it on all the elements of the situation (including, among other things, the fact that the women had not read the contracts they signed) and resting his finding in part on a testimonial inference resulting from his observation of the demeanor17 of the witnesses who testified orally, we would have affirmed.

As it is, we think we must not infer such an implied finding nor contrive an express one of our own. If this case had arisen before Culbertson's advent, we might have done one or the other. For we might have surmised that, had there been losses, the women never would have been asked to live up to their obligations, and that the contracts served solely as paper covers for a tax-reducing scheme benefitting the partnership's members. But we live in the post-Culbertson era and have noted the warning that the ordinary judicial eyes have not the "gimlet" quality, possessed by the Tax Court only, to "pierce" the family-partnership "guise" and thus to differentiate "between the real thing and the imitation".18 Some commentators have criticized Culbertson as requiring sheer ritualism of the Tax Court. But we have not the privilege of criticism: We must obey a Supreme Court decision.

Even so, we need not and shall not here close the door to Tax Court compliance with the Culbertson requirement. "In order that injustice may not be done"19 to the government, and following the practice, particularly in a case of this type, adopted by the Supreme Court (and by us20), we reverse and remand for the purpose of permitting the judge, if he believes the evidence so warrants, to make a further finding relative to the issue of good faith.

Reversed and remanded.

CLARK, Circuit Judge (dissenting).

Judge Van Fossan's findings and conclusions, strongly buttressed by the evidence, in my view not only justify, but require,...

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