Eubank v. Commissioner of Internal Revenue

• Decision Date: 25 March 1940
• Docket Number: No. 138.,138.
• Citation: 110 F.2d 737
• Parties: EUBANK v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Second Circuit

110 F.2d 737 (1940)

EUBANK v. COMMISSIONER OF INTERNAL REVENUE.

No. 138.

Circuit Court of Appeals, Second Circuit.

March 25, 1940.

Harry J. Rudick, of New York City, (Lord, Day & Lord and John W. Drye, Jr., all of New York City, of counsel), for petitioner.

Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Morton K. Rothschild, Sp. Assts. to Atty. Gen., for respondent.

Before SWAN, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.

SWAN, Circuit Judge.

The question presented is whether renewal commissions payable to a general agent of a life insurance company after the termination of his agency and by him assigned prior to the taxable year must be included in his income despite the assignment.

During part of the year 1924 the petitioner was employed by the Canada Life Assurance Company as its branch manager for the state of Michigan. His compensation consisted of a salary plus certain commissions. His employment terminated on September 1, 1924. Under the terms of his contract he was entitled to renewal commissions on premiums thereafter collected by the company on policies written prior to the termination of his agency, without the obligation to perform any further services. In November 1924 he assigned his right, title and interest in the contract as well as the renewal commissions to a corporate trustee. From September 1, 1924 to June 30, 1927, the petitioner and another, constituting the firm of Hart & Eubank, were general agents in New York City for the Etna Life Assurance Company, and from July 1, 1927 to August 31, 1927 the petitioner individually was general agent for said Etna Company. The Etna contracts likewise contained terms entitling the agent to commissions on renewal premiums paid after termination of the agency, without the performance of any further services. On March 28, 1928 the petitioner assigned to the corporate trustee all commissions to become due him under the Etna contracts. During the year 1933 the trustee collected by virtue of the assignments renewal commissions payable under the three agency contracts above mentioned, amounting to some $15,600. These commissions were taxed to the petitioner by the commissioner and the Board has sustained the deficiency resulting therefrom.

It is the view of the Board that Congress intended to tax salaries and commissions to those who earn them regardless of prior assignments. Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731, and Burnet v. Leininger, 285 U.S. 136, 52 S.Ct. 345, 76 L.Ed. 665, are strongly relied upon. But in those cases, as this court has frequently pointed out, the assignor remained in control of the income, since it was only through his continued efforts that it could be earned. See Commissioner v. Field, 2 Cir., 42 F.2d 820, 822; Lowery v. Helvering, 2 Cir., 70 F.2d 713, 714; Rossmoore v. Commissioner, 2 Cir., 76 F.2d 520, 521; Shanley v. Bowers, 2 Cir., 81 F.2d 13, 15; Matchette v. Helvering, 2 Cir., 81 F.2d 73, 74, certiorari denied, 298 U.S. 677, 56 S.Ct. 942, 80 L.Ed. 1398. In the case at bar the petitioner owned a right to receive money for past services; no further services were required. Such a right is assignable. At the time of assignment there was nothing contingent in the petitioner's right, although the amount collectible in future years was still uncertain and contingent. But this may be equally true where the assignment transfers a right to income from investments, as in Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, and Horst v. Commissioner, 2 Cir., 107 F.2d 906, or a right to patent royalties, as in Nelson v. Ferguson, 3 Cir., 56 F.2d 121, certiorari denied, 286 U.S. 565, 52 S.Ct. 646, 76 L. Ed. 1297. By an assignment of future earnings a taxpayer may not escape taxation upon his compensation in the year when he earns it. But when a taxpayer who makes his income tax return on a cash basis assigns a right to money payable in the future for work already performed, we believe that he transfers a property right, and the money, when received by the assignee, is not income taxable to the assignor. The authorities are divergent. Hall v. Burnet, C.A.D.C., 60 App.D.C. 332, 54 F.2d 443, 83 A.L.R. 86, certiorari denied, 285 U.S. 552, 52 S.Ct. 408, 76 L.Ed. 942, accords with our decision in the present case. Bishop v. Commissioner, 7 Cir., 54...