Moisseiff v. Commissioner of Internal Revenue
| Decision Date | 02 December 1930 |
| Docket Number | Docket No. 36111,45700. |
| Citation | 21 BTA 515 |
| Parties | LEON S. MOISSEIFF, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. |
| Court | U.S. Board of Tax Appeals |
Julius H. Cohen, Esq., and Frank B. Wettig, Esq., for the petitioner.
C. A. Ray, Esq., for the respondent.
These proceedings consolidated for hearing and opinion involve deficiencies in income tax for 1925, 1926, and 1927 in the respective amounts of $369.95, $47.75, and $60.39. The questions presented are (1) whether the Delaware River Bridge Joint Commission and The Port of New York Authority are instrumentalities of Pennsylvania, and New York and New Jersey; and (2) whether the petitioner was an employee of these claimed instrumentalities during the years 1925, 1926, and 1927.
FINDINGS OF FACT.
The Delaware River Bridge Joint Commission was created by an act of the Legislature of Pennsylvania, approved July 9, 1919 (P. L. 814), and by chapter 69, Laws of New Jersey, 1919. This legislation authorized a commission constituted by one State to act in conjunction with a similar commission constituted by the other "as a Joint Commission for and on behalf of the Commonwealth of Pennsylvania and the State of New Jersey," for the purpose of constructing a highway bridge across the Delaware River between Philadelphia, Pa., and Camden, N. J.
The Pennsylvania commission consisted of the Board of Commissioners of Public Grounds and Buildings of the Commonwealth of Pennsylvania, the mayor of the city of Philadelphia, and four other citizens of Pennsylvania to be appointed by the governor.
By an Act of Congress approved February 15, 1921, the consent of Congress was granted "to The Delaware River Bridge Joint Commission, acting in behalf of the States of Pennsylvania and New Jersey and the City of Philadelphia, to construct, maintain, and operate a bridge and approaches thereto across the Delaware River at a point suitable to the interests of navigation at or between Green Street and South Street in Philadelphia, Pennsylvania, and points approximately opposite in Camden, New Jersey, in accordance with the provisions of an act entitled `An Act to Regulate the Construction of Bridges over Navigable Waters,' approved February 23, 1906."
The New Jersey commission was the New Jersey Interstate Bridge & Tunnel Commission constituted by chapter 49, Laws of New Jersey, 1918, which originally consisted of eight members appointed by the governor, and of which the governor was an ex officio member. By chapter 272, Laws of New Jersey, 1922, the terms of the members of this commission were terminated and in their place were substituted eight persons appointed by the legislature.
The legislation constituting the Joint Commission provided that it should have power to construct a highway bridge between Philadelphia, Pa., and Camden, N. J., at a location selected by it and in accordance with plans and specifications prepared by it. It was authorized to acquire the necessary land by purchase or by condemnation and to enter into the necessary contracts for the building and equipment of the bridge. The Joint Commission was authorized to appoint, among others:
* * * engineering, architectural and construction experts and inspectors, and such other employees as in the opinion of said Joint Commission may be necessary, all of whom shall do such work in the premises as the Joint Commission shall direct; and the said Joint Commission shall fix the respective compensations of the persons so appointed, which compensation shall be paid by the Joint Commission.
The legislation of both States furthermore provided that each State should contribute as its share of the cost of the bridge, the cost of the land and approaches in that State and one-half of the cost of the superstructure of the bridge, the city of Philadelphia to share equally with the Commonwealth of Pennsylvania in the cost of the land and approaches in that State and in one-half of the cost of the superstructure. It was expressly provided that the Joint Commission should have no power to bind the Commonwealth of Pennsylvania or the State of New Jersey beyond the extent of the moneys appropriated or made available to the Joint Commission by each State.
In July, 1921, the petitioner was engaged as engineer of design of the Delaware River Bridge Joint Commission by Ralph Mojeski, its chief engineer. The commission, by a resolution dated July 21, 1921, approved this appointment, at the rate of $833.33 per month, the appointment being made subject to the pleasure of the commission. The text of this resolution is as follows:
RESOLVED: That the appointment of Leon S. Moisseiff, New York City, by the Chief Engineer of the Joint Commission to the position of Engineer of Design at the rate of $833.33 per month be and is hereby approved; one half of which compensation is to be paid by the State of New Jersey; one quarter of which compensation is to be paid by the State of Pennsylvania and one quarter of which compensation is to be paid by the City of Philadelphia; such appointment to date from July 25th, 1921, and be subject to the pleasure of the Joint Commission.
By a resolution dated September 16, 1921, the text of which follows, the compensation of the petitioner was increased to $1,000 per month:
RESOLVED: That the appointment of Leon S. Moisseiff of New York City by the Chief Engineer of the Joint Commission to the position of Engineer of Design at the rate of $1,000 per month be and is hereby approved; one half of which salary is to be paid by the State of New Jersey; one quarter of which salary is to be paid by the State of Pennsylvania; and one quarter of which salary is to be paid by the City of Philadelphia; such appointment to date from September 1, 1921 and be subject to the pleasure of the Joint Commission.
It is understood that the petitioner was to devote Monday, Tuesday, Thursday, and Friday of each week exclusively to the duties assigned to him by the chief engineer of the Joint Commission, and that on those days he was to be at the offices of the Joint Commission in Philadelphia from 9 a. m. to 5 p. m., the normal working hours for all employees of the Joint Commission, except, of course, on such occasions as his duties might require his attendance elsewhere. It was agreed that although generally the petitioner would be required to devote only four days in each week between the hours of 9 a. m. and 5 p. m. to the duties assigned to him by the Joint Commission, he would whenever necessary devote such extra time to his duties as might be required without any extra compensation.
The duties of the petitioner were prescribed by the chief engineer of the Joint Commission and consisted generally in developing preliminary bridge designs, analyzing stresses and strains for the purpose of determining the general design of the bridge, making studies of the properties and materials for the purpose of determining the nature of the materials to be employed, designing the entire structure, supervising the erection program and checking shop drawings. The petitioner was required to submit to the chief engineer a weekly report of the work of the division of design during the preceding week, and from time to time he was required to make such studies and render such further reports as the chief engineer required. In all of these duties the petitioner was under the immediate and direct supervision of the chief engineer and on occasions when the petitioner differed with the chief engineer on matters involving the design of the bridge, or the type of materials to be used, or on other matters within the scope of his employment, he was directed to proceed in accordance with the directions of the chief engineer.
The petitioner was furnished with an office by the Joint Commission, and he was supplied with all necessary supplies and materials. Traveling expenses and all other expenses incurred by him in connection with the performance of his duties were paid by the Joint Commission. The petitioner at all times during his relations with the Joint Commission had the assistance of a staff of approximately twenty persons, who were employed directly by the commission, whose names appeared on the pay roll of the commission, whose salaries were paid by the commission, and whose labors the petitioner directed and over whom he exercised general administrative control.
The name of the petitioner appeared on the pay roll of the Joint Commission and he was required to sign the same, as were all employees of the commission. Furthermore, like all employees of the commission he was required to sign daily a statement showing the number of hours worked.
The petitioner did in fact maintain his own office and render services to persons other than the Joint Commission on such days as he was not required to devote his time to his duties with the commission, but this was done only with the consent of the chief engineer of the Joint Commission and with the understanding that the petitioner should accept other employment only to the extent that it did not interfere with his duties with the commission and that, whenever required so to do, the petitioner must devote his time exclusively to the duties assigned to him by the chief engineer.
Although the petitioner was not engaged by the Joint Commission for a definite time, his employment continued regularly until May, 1926. In the period between May and October, 1926, the petitioner was employed by the Joint Commission for "twenty odd" days at the rate of $100 per day for the purpose of winding up the miscellaneous duties of the commission.
The foregoing statement describes the duties and relations of the petitioner with the Joint Commission not only during the taxable years 1925 and 1926, but at all times from the date of his engagement by the Joint Commission to May, 1926.
The Port of New York Authority (for brevity hereinafter referred to as The Port Authority), has certain...
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