4 T.C. 1012">*1013 The respondent has determined deficiencies in income tax against the petitioners as follows:

4 T.C. 1012">*1014 The question is whether the amounts of distributive income reported by the petitioners from certain partnerships which were engaged in the business of determining oil well elevations are to be increased by the portions of the income of said partnerships1945 U.S. Tax Ct. LEXIS 199">*202 which their respective wives reported in their separate returns. The only other issue pleaded was disposed of by agreement of the parties entered into at the hearing.

FINDINGS OF FACT.

Petitioner L. D. Simmons resides at Tulsa, Oklahoma, and petitioner R. W. Laughlin resides at Oklahoma City. They filed their income tax returns for 1939 and 1940 with the collector for the district of Oklahoma.

During 1939 and 1940 the petitioners were engaged in the business of determining oil well elevations for customers or clients. The Oklahoma operations were conducted under the name Laughlin, Simmons & Co., the Kansas operations as Laughlin, Simmons & Co. of Kansas, and all other operations under the name of Laughlin-Simmons & Co. of Texas. The operations last mentioned extended into Texas, Arkansas, Louisiana, New Mexico, Mississippi, Kentucky, Indiana, Illinois, and Nebraska. The headquarters of all three operations was in Tulsa, Oklahoma.

The business carried on was the outgrowth or development of a similar business begun on a smaller scale by petitioners in 1926. The business as originally begun was conducted as a partnership, under an agreement entered into by petitioners on June 21, 1945 U.S. Tax Ct. LEXIS 199">*203 1926. The agreement provided that Simmons should devote his entire time to the business, while Laughlin was to devote approximately one-half of his time to it, and that they should share equally in the gains and losses. So far as disclosed, all of the operations of that partnership were conducted in Oklahoma. The main office of the partnership was at Tulsa, which has continued to be the headquarters for subsequent business operations, whether conducted in corporate or partnership form.

On January 24, 1928, the business was incorporated as Laughlin-Simmons & Co. under the laws of Oklahoma, with a capital stock of $ 5,000, consisting of 50 shares of a par value of $ 100 each. Each of the petitioners paid $ 2,000 for 20 shares of the corporation's stock, Grace Simmons, the then wife of Simmons, paid $ 500 for 5 shares, and Sarah Laughlin, the wife of Laughlin, paid $ 500 for 5 shares. The $ 500 paid by Grace Simmons had been acquired by inheritance prior to her marriage. Some oil royalties given by Laughlin to Sarah Laughlin about the time of their marriage were the probable source of the $ 500 paid by her. The wives of petitioners became officers 4 T.C. 1012">*1015 of the corporation1945 U.S. Tax Ct. LEXIS 199">*204 and received as, or under the guise of, salary about $ 3,000 to $ 3,600 per year, and of the dividends paid they received amounts proportionate to the stock held by them.

In August of 1934 Simmons was divorced from Grace Simmons. At that time he made a substantial cash payment to her in a property settlement and acquired the five shares of stock held by her in Laughlin-Simmons & Co. She retained as her separate funds the amounts she had received from the corporation as salary and dividends.

The corporation, Laughlin-Simmons & Co., was authorized to carry on operations in Oklahoma. A permit was obtained to do business in Texas, and operations were also conducted by it in Kansas. It started operations in Texas in 1931, and in 1932 purchased the business of another company which, since 1928, had been conducting in Texas the same type of business as that carried on by the corporation. By 1934 the business in Texas had expanded substantially and there were prospects for further expansion.

By an agreement dated July 2, 1934, the petitioners formed a partnership, to be known as Laughlin, Simmons & Co. of Texas. The agreement recited that the partnership would carry on operations in1945 U.S. Tax Ct. LEXIS 199">*205 the States of Texas and New Mexico; that petitioners, being the principal owners of the stock and the principal officers and managers of Laughlin-Simmons & Co., the Oklahoma corporation, would, so far as consistent with the performance of their duties to the corporation, give their attendance and utmost skill for the benefit and advantage of the partnership, and, having contributed equally to the capital of the partnership, would share equally in its profits and losses. It was further recited that the bank account of the partnership should be kept in the First National Bank of Tulsa, Oklahoma, and be subject to check by petitioners jointly; that neither of the petitioners should sell or assign his interest in partnership property without the prior approval of the other; that the partnership should continue until dissolved by written notice by one party to the other; and that, upon termination of the partnership, its assets should be divided equally between the petitioners. The business theretofore carried on by the corporation in Texas was taken over and carried on by the partnership, and the corporation thereafter did not conduct any operations in that state.

On July 1, 1935, Laughlin1945 U.S. Tax Ct. LEXIS 199">*206 and Sarah Laughlin, his wife, as party of the first part, and Simmons, as party of the second part, executed an agreement, wherein it was stated that the parties agreed to "associate themselves as partners in the business of disseminating valuable commercial information and in particular to determine, market and carry on an oil and gas well elevation service in the State of Kansas, and none other, under the firm name and style of 'Laughlin, Simmons & Co. of Kansas'." The agreement recited that the parties thereto, 4 T.C. 1012">*1016 being the principal owners of the stock and the principal officers and managers of the Oklahoma corporation, Laughlin-Simmons & Co., would, so far as consistent with the performance of their duties to the corporation, give their attendance and utmostskill for the benefit and advantage of the partnership, and that the parties, having contributed equally to the capital of the partnership, would share equally in its profits and losses. It was further recited that the bank account of the firm should be kept in the First National Bank of Tulsa, Oklahoma, and might be drawn upon only by checks signed by Laughlin or Simmons; that neither of the parties should sell or1945 U.S. Tax Ct. LEXIS 199">*207 assign his interest in the partnership property without the prior approval of the other; that the partnership should continue until dissolved by written notice by one party to the other, and, upon termination, its assets should be divided equally between the parties. There was no provision in the said agreement which prescribed or indicated that Sarah Laughlin had any interest in the partnership separate and apart from petitioner R. W. Laughlin. The business theretofore carried on by the corporation in the State of Kansas was taken over and thereafter conducted under the name of Laughlin, Simmons & Co. of Kansas, and the corporation did not thereafter conduct any operations in that state.

An authorization to the First National Bank of Tulsa respecting the handling of checks and drafts of Laughlin, Simmons & Co. of Kansas recited that the partnership was composed of R. W. Laughlin, L. D. Simmons, and Sarah Laughlin.

The opening capital account set up on the books of Laughlin, Simmons & Co. of Kansas disclosed capital payments as follows: Simmons, $ 215.73; Laughlin, $ 107.87; Mrs. Laughlin, $ 107.87. These amounts, totaling $ 431.47, represent the payments made by the respective1945 U.S. Tax Ct. LEXIS 199">*208 parties to Laughlin-Simmons & Co., the Oklahoma corporation, for office equipment and a car having a depreciated value of that amount. Simmons and Laughlin each made further payments to Simmons, Laughlin & Co. of Kansas of $ 250 each. Subsequently Mrs. Laughlin reimbursed Laughlin for $ 125 of the $ 250 payment so made by him.

In December 1936 Laughlin-Simmons & Co., the Oklahoma corporation, was dissolved. At that time Simmons owned 25 shares of stock, Laughlin, 20 shares, and Mrs. Laughlin, 5 shares. On January 2, 1937, Laughlin and Mrs. Laughlin, as party of the first part, and Simmons, as party of the second part, executed an agreement wherein it was stated that the parties agree to "associate themselves as partners in the business of disseminating valuable commercial information and in particular to determine, market and carry on a well elevation business in the State of Oklahoma, and none other, under the firm name and style of 'Laughlin, Simmons & Co.'" The agreement recited that the parties would give their attendance and utmost skill 4 T.C. 1012">*1017 for the benefit of the partnership and that the parties, having contributed equally to the capital of the partnership, would 1945 U.S. Tax Ct. LEXIS 199">*209 share equally in its profits and losses. It was further recited that the bank account of the firm should be kept in the First National Bank of Tulsa, Oklahoma, and might be drawn on only by checks signed by Simmons or Laughlin; that neither of the parties should sell or assign his interest in the partnership property without the prior approval of the other; that the partnership should continue until dissolved by the written notice by one party to the other; and that upon termination its assets should be divided in proportion to the respective interests of the parties. There was no provision in the said agreement which prescribed or indicated that Sarah Laughlin had any interest in the partnership separate and apart from petitioner R. W. Laughlin. The business theretofore carried on by the Oklahoma corporation was thereafter conducted under the name and style set forth in the above agreement of January 2, 1937.

An authorization to the First National Bank of Tulsa respecting the handling of checks and drafts of Laughlin, Simmons & Co. was executed under date of January 22, 1937, by L. D. Simmons, R. W. Laughlin, and Sarah Laughlin, and recited that the partnership was composed of 1945 U.S. Tax Ct. LEXIS 199">*210 R. W. Laughlin, L. D. Simmons, and Sarah Laughlin.

On October 2, 1937, Simmons married his present wife, Isabel Simmons. She had graduated from college in June preceding.

On or under date of December 31, 1937, three documents were executed with respect to the operations carried on as Laughlin, Simmons & Co. of Texas. One document was in the form of a letter from Simmons to Laughlin demanding dissolution of the partnership known by that name, which had been formed in 1934 to take over the Texas operations theretofore conducted by Simmons-Laughlin & Co., the Oklahoma corporation. The letter declared that the book cost of the assets as of December 31, 1937, was $ 10,963.75, which amount less depreciation of $ 3,774.48 would leave $ 3,594.63 for distribution to each of the parties. Laughlin noted his acceptance on the letter. A second paper was in the form of a declaration by Simmons of a gift to Isabel Simmons of an undivided one-fourth interest "in and to the property and assets of Laughlin, Simmons & Co. of Texas as of the date of the dissolution of said partnership, which occurred on December 31, 1937." Attached to the document was an inventory of the said assets and physical 1945 U.S. Tax Ct. LEXIS 199">*211 properties indicating a net cost or value of $ 7,275.98. The third document, executed by L. D. Simmons and Isabel Simmons, "party of the First Part (share and share alike)," and R. W. Laughlin, party of the second part, recited that the parties agreed to associate themselves as partners in "the business of determining and marketing the eleavtion (and none other) of oil and gas wells in any state except 4 T.C. 1012">*1018 Oklahoma and Kansas, under the firm name of Laughlin-Simmons & Co. of Texas." It was stated that the capital furnished consisted of undivided interests in net fixed assets and deposits -- $ 1,797.32 each by L. D. Simmons and Isabel Simmons and $ 3,594.63 by Laughlin. In other respects, and in so far as is here important, the document contained provisions similar to the agreements previously executed to cover the well elevation operations in Oklahoma and Kansas, except that provision was made that the bank account of Laughlin-Simmons & Co. of Texas should be kept in the First National Bank of Dallas, Texas. The inventory of property covered by the above instrument consisted in the main of eleven Chevrolet automobiles, with comparatively smaller amounts of furniture and fixtures1945 U.S. Tax Ct. LEXIS 199">*212 and instruments and equipment. No money or other property was involved except a total of $ 285.94 representing deposits in respect of compensation insurance with the States of Texas, Arkansas, Illinois, Louisiana, and Kentucky.

Simmons filed a gift tax return in which he reported as a gift to Isabel Simmons an undivided one-half of his interest in the assets of Laughlin-Simmons & Co. of Texas, in the amount of $ 1,797.32. The Commissioner increased the value to $ 59,853.45 and assessed a gift tax thereon against Simmons, which tax was paid.

In the agreement executed on July 1, 1935, to cover the operations carried on as Laughlin, Simmons & Co. of Kansas, in which R. W. Laughlin and Sarah Laughlin were declared party of the first part and L. D. Simmons party of the second part, it was recited that each party should be entitled "to take out of the cash of said partnership the sum of Fifty Dollars monthly to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use (except in salary, if any) without the consent of the other in writing." A similar provision appeared in the document executed January 2, 1937, to cover the operations1945 U.S. Tax Ct. LEXIS 199">*213 in Oklahoma, wherein R. W. Laughlin and Sarah Laughlin were also listed as party of the first part and L. D. Simmons as party of the second part, and in the agreement of December 31, 1937, covering the operations carried on as Laughlin-Simmons & Co. of Texas, wherein L. D. Simmons and Isabel Simmons were listed as party of the first part and R. W. Laughlin as party of the second part.

Under date of January 10, 1940, Laughlin addressed the following letter to Mrs. Laughlin:

According to Articles of Partnership drawn up between L. D. Simmons and Isabel Simmons and myself, dated December 31, 1937, I am the owner of one-half (1/2) interest of the Partnership known and operating under the name of Laughlin-Simmons & Co. of Texas.

It is my desire to give you a one-eighth (1/8th) interest in the whole of the Partnership of Laughlin-Simmons & Co. of Texas.

According to Paragraph Seven (7) of the above mentioned Articles of Partnership, 4 T.C. 1012">*1019 it is necessary that I obtain permission of L. D. Simmons and Isabel Simmons before this gift may be consummated. If this action is agreeable with them, they will note same by placing their signatures on this letter. After their signatures have 1945 U.S. Tax Ct. LEXIS 199">*214 been affixed hereto the interest owned by each of us in Laughlin-Simmons & Co. of Texas will be:

This letter is written as an original and three (3) copies. I ask that you retain the original and each of the other three (3) interested parties will retain a copy and attach to the original Articles of Partnership.

The effective date of this gift shall be January 2, 1940.

Respectfully yours,

[Signed] R. W. Laughlin

The gift of one-eighth (1/8th) interest in Laughlin-Simmons & Co. of Texas by R. W. Laughlin to Sarah Laughlin is agreeable and satisfactory with each of us.

[Signed] L. D. Simmons

Isabel Simmons

Laughlin filed a gift tax return for 1940, in which he reported as a gift to Mrs. Laughlin an undivided one-eighth interest in Laughlin-Simmons & Co. of Texas, of a value of $ 29,926.72, which was computed on the same basis as used by the Commissioner in determining the value of the interest reported by Simmons as having been given to Mrs. Simmons in 1937. Laughlin, in addition to reporting a gift to Mrs. Laughlin in 1937, also reported a gift of $ 7,500 in cash to his daughter. Because1945 U.S. Tax Ct. LEXIS 199">*215 of the exclusions and exemption taken, the return showed no gift tax liability.

At the time of the purported gifts by Laughlin and Simmons to their respective wives of interests in the Texas company operations, the wives understood that the assets or property involved should remain in the business.

Prior to organization of the oil well elevation business by petitioners in 1926, the oil companies ran the elevations of their own wells.

The term "elevation" as used in the business in which the petitioners are engaged means the elevation of the derrick floor of a well above sea level, which ranges from three to ten feet above the ground. In establishing such elevations, use is made of bench marks established by the United States Coast and Geodetic Survey, a determination being made of the relative difference between these and the derrick floors of the wells that are started. The principal or home office of each of the partnerships was in Tulsa and the determination of well elevations was made by employees in local district offices. Laughlin-Simmons & Co. of Texas had six district offices located in Texas, one 4 T.C. 1012">*1020 in Louisiana, two in Illinois, and one in Indiana. Laughlin, 1945 U.S. Tax Ct. LEXIS 199">*216 Simmons & Co. had a district office in Oklahoma City which served the western part of Oklahoma. The employees of a typical district office consisted of a man in charge or manager, a part time assistant, at least one rodman, and generally the manager's wife, who handled telephone requests and assembled and distributed information to oil companies in the district with which the particular partnership did business. The salary of the man in charge ranged from $ 225 to $ 285 a month, of the rodman, about $ 110 a month, and of the wife of the man in charge, $ 50 a month. During 1939 and 1940 the total number of employees for all three partnerships averaged about thirty-two.

During 1940 a total of 17,000 or 18,000 well elevations were run by the three partnerships, and the automobiles owned by them traveled between 500,000 and 600,000 miles.

During 1939 and 1940 the three partnerships had a total of about 30 or 35 subscribers or customers. These consisted principally of the larger oil companies who purchased the information supplied by the partnerships for use by their geological departments in computing subsurface structures. The practice of the partnerships is to send out folders to1945 U.S. Tax Ct. LEXIS 199">*217 its subscribers and to prospective subscribers setting out index maps of the areas in which the partnerships operate and the price of the services within the respective areas. These folders are printed and distributed under the name "Laughlin-Simmons & Co.," General Office, Tulsa, Oklahoma, and there is no indication or suggestion that the operations are divided among three companies. Neither is there any indication or suggestion that the proprietary interests therein are variously owned. The subscribers return the maps, with markings thereon to indicate the areas in which they wish to be served. Approximately 50 folders were sent out during each of the years 1939 and 1940. Reports to subscribers as to well elevations were usually mailed directly from the district offices where prepared. However, in the case of the office at Oklahoma City, the reports prepared there were forwarded to Tulsa and distributed to subscribers from the Tulsa office. Copies of the reports from the other district offices were also forwarded to Tulsa, where they were filed, the data from some being transcribed onto maps maintained there. The Tulsa office was without facilities for checking the correctness1945 U.S. Tax Ct. LEXIS 199">*218 of the data in the reports, and no attempt was made to check them. The business of the partnerships was built up largely upon the accuracy and efficiency of the work done by the firms throughout the years, namely, the information assembled by the field men and supervised by petitioners. During 1939 and 1940 the partnerships had no competition in the areas in which they operated.

No one connected with any of the partnerships is a registered 4 T.C. 1012">*1021 professional engineer. Laughlin was graduated from Ohio State University with the degree of Bachelor of Science, his major subject being agriculture and his minor being geology. No one connected with any of the partnerships, except Laughlin, is a professional geologist. Laughlin lives in Oklahoma City, and his office is at the district office of Laughlin, Simmons & Co. located there. Beginning in 1926, and for some six years, he did a substantial amount of the field work, but in the late years most of that work has been done by employees. During 1939 and 1940 he devoted about one-half of his time to the business of the partnerships and during a portion of those years he gave instructions in the Oklahoma City office to field men1945 U.S. Tax Ct. LEXIS 199">*219 on certain methods of procedure to be followed in obtaining uniformity in the methods employed in the field offices. He made from four to six trips a year to field offices.

Simmons, who lives in Tulsa, was graduated from the University of Maryland, with the degree of Bachelor of Science in economics. During 1939 and 1940 he devoted his entire time to the business of the three partnerships, with the exception of about one month a year. He was the general manager of the home office of the partnerships in Tulsa. All correspondence from subscribers and from prospective subscribers was handled by him in the office. He also assisted in the drafting done in the office. In some instances he went out and solicited business from prospective customers. He visited the district offices on an average of about twice a year, spending a total of about eight weeks a year in the field.

Isabel Simmons graduated from college in June 1937. Her studies included one year of accounting. During her college course she worked for three summer vacations, doing typing and filing work for the Oklahoma Natural Gas Co. in Tulsa. She has never had any engineering experience nor any experience in determining1945 U.S. Tax Ct. LEXIS 199">*220 the elevation of oil wells. She resides in Tulsa, and during 1939 and 1940 she worked in the home office of the three partnerships, being there three or four days a week, except for two or three weeks in the year, when she was there daily. Her services in the office consisted of writing letters to field men advising them that their reports to the office were overdue and at times advising them of new subscribers to whom reports were to be sent. She did not have a separate office, but used a desk in her husband's office. The work she performed was in connection with all three of the partnerships. She accompanied her husband on certain field trips on which they visited the district office in Louisiana of Laughlin-Simmons & Co. of Texas, four of its district offices in Texas, and one of its offices in Illinois. On these visits she talked with the district managers and their wives. Since her marriage to Simmons she has attended three national meetings of the American Association of 4 T.C. 1012">*1022 Petroleum Geologists. At those meetings she mingled socially with the wives of the visiting geologists. At one of the meetings the partnerships had a display or advertising booth, at which1945 U.S. Tax Ct. LEXIS 199">*221 she conversed with visiting geologists about the "things usually talked about on such occasions."

Sarah Laughlin resides in Oklahoma City. She has never worked in any of the offices and has had no experience in determining oil well elevations or similar work. Her principal activities, in so far as they were in any way connected with the partnerships, were of a social nature. Since 1928 she has accompanied her husband on field trips, averaging from four to six trips a year during the taxable years. On such trips she talked with the field men and their wives, and she and Laughlin would also meet geologists who worked for the major oil companies and their wives. Although no claim is made that she was a member of Laughlin-Simmons & Co. of Texas during the years 1936 through 1939, she made several trips with Laughlin to Texas during those years. She has entertained socially in her home employees of the partnerships and their wives, and also geologists and their wives. She and Laughlin have known the geologists and their wives many years, and they are friends rather than prospective customers. She also attended national meetings of the American Association of Petroleum Geologists1945 U.S. Tax Ct. LEXIS 199">*222 with her husband. At these meetings she stayed at a booth where she met friends, and in the evenings she would associate socially with geologists and their wives. When the national meeting was held in Oklahoma City in 1939 she assisted on several committees to look after the entertainment of the wives of the geologists. She also discussed with Laughlin various field employees whom he and Simmons planned to hire or discharge.

Neither the name of Mrs. Simmons nor that of Mrs. Laughlin appeared in the letterheads or advertising matter of the partnerships. On November 17, 1942, F. R. Schenck, of Lubbock County, Texas, and manager of a Texas district office, brought suit in the District Court of the United States for the Western District of Oklahoma, Oklahoma City Division, against Laughlin-Simmons & Co. of Texas, as a partnership, alleging that it was composed of Laughlin and Simmons. The purpose of the suit was to obtain payment for overtime work alleged to have been done by Schenck for the partnership during the period from January 1, 1939, to August 16, 1941. In the motion and answer filed in the suit on December 7, 1942, motion was made to dismiss on the ground that a suit could1945 U.S. Tax Ct. LEXIS 199">*223 not be maintained against a partnership, as a legal entity, and that the court had no jurisdiction over the named defendant. In the answer there was no denial that the partnership was composed only of Laughlin and Simmons. The suit came on for 4 T.C. 1012">*1023 trial on May 3, 1943, and during the trial Simmons, in response to the question, "Who are your partners?" asked by counsel for the defense, replied, "R. W. Laughlin and my wife, Isabel Simmons, and his wife, Sarah Laughlin." After Simmons had completed his testimony, the court observed that the testimony showed that there were two additional parties to the suit and ordered the petition amended to include Mrs. Simmons and Mrs. Laughlin as defendants. The court's decision was adverse to the plaintiff. In applying in 1940 for policies of employer's liability insurance for the three partnerships, Simmons stated that Mrs. Simmons and Mrs. Laughlin were partners. At the time application was made in 1940 or 1941 for liability insurance on automobiles owned by the partnerships, Laughlin stated that they were composed of himself, Mrs. Laughlin, Simmons, and Mrs. Simmons. On other occasions and in connection with discussion of the income1945 U.S. Tax Ct. LEXIS 199">*224 tax, Laughlin told an office neighbor "that he and his wife and his partner and his wife in Tulsa had a partnership arrangement."

The Laughlin, Simmons & Co. and Laughlin, Simmons & Co. of Kansas bank accounts are kept at the First National Bank of Tulsa. The bank account of Laughlin-Simmons & Co. of Texas is kept at the First National Bank of Dallas. Simmons and Mrs. Simmons have joint bank accounts in the Tradesmen's National Bank of Oklahoma City and in the First National Bank of Dallas. They each have an individual account in the First National Bank of Tulsa. Checks issued by Laughlin-Simmons & Co. of Texas to Simmons and Mrs. Simmons as distributions of partnership profits were deposited in their joint account in the First National Bank of Dallas. With the possible exception of a check issued to Mrs. Simmons on April 2, 1940, as in distribution of 1939 partnership profits, checks drawn to her and to Simmons were endorsed and deposited by an employee of the partnership. Unless a check happened to have been signed by Simmons on behalf of the partnership, neither she nor he ever saw it before it was deposited. Allowances given her by Simmons for the payment of household expenses1945 U.S. Tax Ct. LEXIS 199">*225 were deposited in her individual account in the Tulsa bank. In the exercise of his unrestricted right to check on the joint account in the First National Bank of Dallas, Simmons, sometime prior to the middle of 1942, made withdrawals in excess of half of the total amount deposited in the account from Laughlin-Simmons & Co. of Texas. During 1939 and 1940 he made no accounting to her with respect to such excess, and, in fact, did not know the extent of such excess during those years. In 1942 he came to the conclusion that the excess withdrawals amounted to about $ 10,000. On May 26 or 27, 1942, he purchased a farm in Wisconsin, paying the purchase price of $ 15,820 out of his separate bank account. The deed 4 T.C. 1012">*1024 was made to him and his wife jointly. He has since treated the property, to the extent of one-half of the cost thereof, as a credit on his withdrawals from the joint bank account. So far as disclosed, there has never been any account or record showing the existence of any liability on the part of Simmons for withdrawals from the above joint account.

The Laughlins have a joint account in the First National Bank of Dallas. They have separate accounts in the First1945 U.S. Tax Ct. LEXIS 199">*226 National Bank of Oklahoma City; however, each is authorized to draw checks on the account of the other, but Laughlin has never drawn any checks on Mrs. Laughlin's account for the payment of his personal expenses or for the payment of his individual investments. Although the account in the First National Bank of Dallas has been maintained since about 1934, Mrs. Laughlin did not check on it until "just fairly recently." Checks issued to her as distributions of her share of partnership profits were endorsed and deposited by the bookkeeper of the firms either in the joint account in the First National Bank of Dallas or in her account in the First National Bank of Oklahoma City. She did not know what portion of the distributions were deposited in the respective accounts. No payments in cash were received by her from any of the partnerships. During 1939 and 1940 she issued checks on her account in the First National Bank of Oklahoma in payment of living and household expenses and clothes for herself and her daughter. Regular monthly expenses, such as utility bills and such other items as taxes, repairs, etc., were paid directly by Laughlin. During 1939 the family and household expenses1945 U.S. Tax Ct. LEXIS 199">*227 paid by Mrs. Laughlin totaled $ 5,354.87. On May 16, 1940, Laughlin issued a check to her in that amount on the joint account in the First National Bank of Dallas, and it was deposited to her account in the First National Bank of Oklahoma City. The same procedure was followed for 1940 with respect to such expenses.

Isabel Simmons purchased in her own name United States savings bonds costing $ 7,500 in each of the years 1939, 1940, and 1941. Similarly she purchased in 1940 United States postal savings certificates costing $ 2,500. Sarah Laughlin purchased in her own name United States savings bonds costing $ 7,500 in each of the years 1937, 1939, and 1940. She bought in 1936 United States postal savings certificates costing $ 1,060, and in 1933 railroad bonds costing $ 1,200. On dates and in amounts undisclosed, she also purchased some oil royalties.

The balance sheets of the three partnerships as of December 31, 1938, 1939, and 1940, respectively, were as follows: 4 T.C. 1012">*1025

The following1945 U.S. Tax Ct. LEXIS 199">*230 is a consolidated balance sheet of the three partnerships as of December 31, 1940:

4 T.C. 1012">*1027 The following is a statement of the income, operating expenses, and net profits of each of the partnerships for 1939 and 1940:

1945 U.S. Tax Ct. LEXIS 199">*231 The partnership returns of income filed by the respective partnerships showed the members of the partnerships and their distributive shares of income for 1939 and 1940 to be as follows:

In their separate income tax returns for 1939 and 1940 Laughlin and Simmons and their wives reported as income the above indicated amounts as representing their distributive shares of the net income of the respective partnerships. In determining the deficiencies involved herein, the respondent determined (1) that Mrs. Simmons was not a member of Laughlin-Simmons & Co. of Texas during 1939 and 1940, and that the amount of income reported by her as her distributive share of the income of that1945 U.S. Tax Ct. LEXIS 199">*232 partnership for the respective years was taxable to Simmons; and (2) that Mrs. Laughlin was not a member 4 T.C. 1012">*1028 of Laughlin, Simmons & Co. and Laughlin, Simmons & Co. of Kansas during 1939 and 1940, and was not a member of Laughlin-Simmons & Co. of Texas during 1940, and that the amounts of income reported by her as her distributive shares of the income of those partnerships for the respective years were taxable to Laughlin.

OPINION.

Beginning in 1926, the petitioners have built up a very profitable business, which consists of running and establishing oil and gas well elevations for subscribing oil companies. That the business is essentially a personal service operation is indicated not only by the type and character of work done, but by the fact that the net profits are consistently several times the capital invested. In the early years petitioner Laughlin did considerable of the field work himself, but in more recent years the business has expanded to such an extent that such work is done chiefly by technicians who are employed to work from field offices in various of the eleven states in which the business is conducted. In circulars distributed among subscribers and prospective1945 U.S. Tax Ct. LEXIS 199">*233 subscribers, the operations are portrayed as one venture, under the name and style of Laughlin-Simmons & Co., Tulsa, Oklahoma. According to their books of account, however, and certain formal documents executed by the petitioners and their wives, the operations are divided into three partnerships; one such partnerships, covering the operations in the State of Kansas, being designated Laughlin, Simmons & Co. of Kansas and purporting to have Laughlin, Simmons, and Mrs. Laughlin as partners; another, covering Oklahoma operations, being designated Laughlin, Simmons & Co. and purporting to have the same three individuals as partners; and the third being designated Laughlin-Simmons & Co. of Texas and purporting to have Laughlin, Mrs. Laughlin, Simmons, and Mrs. Simmons as partners.

In Laughlin-Simmons & Co. of Texas, in which the wives of both petitioners are claimed to be partners, the interests of the wives therein sprang from gifts claimed to have been made by the petitioners to their respective wives. In the case of Simmons and his wife, the transaction took the form of dissolution of an existing partnership between the petitioners, a gift by Simmons of an undivided one-half interest1945 U.S. Tax Ct. LEXIS 199">*234 in the fixed assets of the business distributable to him, and the execution of a new partnership agreement naming Simmons and his wife, share and share alike, as party of the first part, and Laughlin as party of the second part. In the case of Laughlin and his wife, the transaction took the form of a letter by Laughlin to Mrs. Laughlin purporting to give her "a one-eighth (1/8th) interest in the whole of the Partnership of Laughlin-Simmons & Co. of Texas," concurred in, on its face by Simmons and Mrs. Simmons. In the case of both Mrs. Simmons and Mrs. 4 T.C. 1012">*1029 Laughlin, it was understood that the assets or property involved was to remain in the business. Neither of them made any contribution of their separate funds to capital. It is contended by the petitioners, however, that their wives did in truth and in fact become partners in the venture and that this conclusion is supported not only by contributions to capital by means of the purported gifts, but through the actual rendition of services in carrying on the operations of the business. In the case of Mrs. Laughlin, it is apparent that her activities did not change after the purported gift; that these activities were in the1945 U.S. Tax Ct. LEXIS 199">*235 main social activities and, in so far as they related to the business at all, were of the same nature and character as those which might reasonably be expected of any woman having an interest in the success of her husband's business endeavors. She accompanied Laughlin on his trips to the field offices and while there talked with the managers and their wives. According to her testimony, she made four to six such trips in 1940, after she purportedly became a member of the Texas partnership. She had also, according to her testimony, made four to six such trips in 1939, before the purported gift. Over certain periods of time she attended conventions involving the oil industry and indulged in the social activities, and while attending one convention at which Laughlin-Simmons & Co. had a booth she spent some time in the booth. At other times she and Laughlin entertained in their home various oil men and their wives and, in some instances, various field managers and their wives, and on some occasions she discussed with Laughlin the merits of some employee or prospective employee. Considering the nature and character of the business, we are unable to find in these activities a sufficient1945 U.S. Tax Ct. LEXIS 199">*236 basis for resting the conclusion that Mrs. Laughlin was a member of the partnership upon the services rendered by her.

It is true that the books of account of the Texas operations were kept in a manner to show that, from and after the purported gift in January of 1940, Mrs. Laughlin was the owner of a one-eighth interest in the partnership and that distributions of partnership profits were made on that basis by checks drawn in her name. It is also true that she reported such profits as her income in her 1940 return. It is to be noted, however, that the checks drawn covering her distributive share of the profits were deposited by someone other than Mrs. Laughlin in the joint bank account which she and Laughlin had in the First National Bank of Dallas, Texas. The Laughlin household expenses for both 1939 and 1940 were paid by Mrs. Laughlin out of her personal bank account in Oklahoma City. After the close of each of those years Laughlin purportedly reimbursed her for those expenditures, but in each instance the check drawn for the purpose of making the said reimbursement was drawn on the joint bank account of Laughlin 4 T.C. 1012">*1030 and Mrs. Laughlin in the Dallas bank. We are not 1945 U.S. Tax Ct. LEXIS 199">*237 advised as to what became of other moneys deposited in that joint bank account, but we do know that it was "just fairly recently" that Mrs. Laughlin ever drew a check on the said account.

Such being the facts, we are unable to conclude, as the petitioners would have us do, that Mrs. Laughlin was a partner in their Texas operations during the year 1940, but, to the contrary, conclude and hold that the income therefrom, to the extent of one-half, was the income of Laughlin. See and compare ; certiorari denied, ; ; ; .

In the case of Mrs. Simmons the situation is much the same, the only substantial difference being that Mrs. Simmons did do some office work in the headquarters office in Tulsa, Oklahoma, for the operations as a whole. We are not advised whether she perfomed such services after her marriage to Simmons and before the purported gift; neither are we advised as to1945 U.S. Tax Ct. LEXIS 199">*238 what portion of the work, if any, done by her had to do with Laughlin-Simmons & Co. of Texas, of which she is claimed to be a member. There is no claim that she had anything to do with keeping the books of account. Further, we are advised that in case of the Texas company operations the reports to the oil companies were mailed directly from the field offices and were not handled, except for filing, in the Tulsa office. In some instances some of the data on the various reports were transferred to maps in the Tulsa office, but whether or not that occurred with respect to the reports in the so-called Texas operations, we do not know. Neither does it appear that Mrs. Simmons had anything to do with the transferring of such data. Her other activities, as in the case of Mrs. Laughlin, were of a social nature and, in so far as they had a bearing on the oil and gas well elevation business, were no more than might reasonably have been expected from any wife having an interest in the activities of her husband. As in the case of Mrs. Laughlin, we do not find in the record here a sufficient basis in fact for concluding that Mrs. Simmons was a member of the partnership styled Laughlin-Simmons1945 U.S. Tax Ct. LEXIS 199">*239 & Co. of Texas, and hold that one-half of the income from its operations was properly determined to be the income of petitioner Simmons.

While it is true that Mrs. Laughlin owned or held 10 percent of the stock of Laughlin-Simmons & Co., the Oklahoma corporation, and the partnerships, Laughlin, Simmons & Co. and Laughlin, Simmons & Co. of Kansas, after their formation, performed the services for Oklahoma and Kansas subscribers which had theretofore been performed by the corporation, the evidence in our opinion refutes, rather than supports, the claim that the partnership income allocated to her was her income. 4 T.C. 1012">*1031 In the first place, the business carried on was a personal service business and, though neither Laughlin nor Simmons any longer actually ran the well elevations, there can be no doubt from the evidence of record that the distributable income with which we are here concerned was, in the main, attributable to the services rendered by them. They organized, planned, and managed the business and, to the extent necessary, instructed and trained the employees in the duties they were to perform. Some indication of the force of their services in the production of income1945 U.S. Tax Ct. LEXIS 199">*240 can be had by comparing gross income, operating expenses, the net profits remaining, and the amount of capital invested, remembering at the same time that the operating expenses shown included the salaries and wages of the men who did run the well elevations, but no salaries or compensation for Laughlin and Simmons, and that such capital as was used in the business was invested chiefly in furniture and fixtures, technical instruments and equipment used in rendering the services sold to subscribers, and automobiles used in transporting personnel.

In the second place, it is noticeable that, except for the keeping of book accounts and the reporting of the income for income tax purposes, little regard was had for the niceties and formalities, to say nothing of the actualities, which would indicate that Mrs. Laughlin had the interests in the businesses contended for. It is said, for instance, that she had an interest of 10 percent in the Oklahoma partnership and of 25 percent in the Kansas partnership, and yet the formal partnership agreements fail to show that she had any interest whatever in those partnerships separate and apart from the interest of Laughlin, her husband. It is also1945 U.S. Tax Ct. LEXIS 199">*241 said that since the Oklahoma and Kansas partnerships succeeded to the Oklahoma and Kansas business of the corporation, the interests in the partnerships were hers because of her ownership of 10 percent of the stock of the corporation, and yet in 1934, when the business then being conducted by the corporation in the State of Texas had increased substantially, Simmons and Laughlin, without any showing that they had consulted Mrs. Laughlin, separated the Texas business of the corporation from its other business and set the Texas business up as a partnership of their own; and there is no claim that Mrs. Laughlin at any time thereafter had any interest in the Texas operations until the purported gift in 1940. An explanation offered was that allowance was made for such disregard of her rights by giving her, at the time the Kansas partnership was created, a 25 percent interest, instead of a 10 percent interest, in the Kansas operations, although it is admitted that no effort was made to determine the comparability of a 25 percent interest in the Kansas operations with a 10 percent interest in the Texas operations, and we do know that in the years before us 10 percent of the Texas profits1945 U.S. Tax Ct. LEXIS 199">*242 was substantially greater than 25 percent of the Kansas profits. It does appear that Mrs. Laughlin did purchase in her own 4 T.C. 1012">*1032 name some United States savings bonds and postal savings certificates, and it probably is true that the profits of the businesses in which it is claimed she was a partner did constitute the original source of at least some of the funds used in making those purchases. But it also appears that she had little actual knowledge either as to the amounts of or the time, method, or manner of making the distributions. Some of the profits undoubtedly found their way by direct deposit or transfer into her individual account, in an Oklahoma City bank. Some of the profits, she knew, were deposited in the joint account which she had with her husband in a Dallas bank, but until "just fairly recently" she had done no checking on that account. In that connection it is interesting to note that, as evidence that none of Mrs. Laughlin's purported share of the partnership profits was used to pay or satisfy the personal obligations of petitioner Laughlin, checks drawn by Laughlin on the Dallas account, half of which it is claimed belonged to her, were introduced to 1945 U.S. Tax Ct. LEXIS 199">*243 show that he had reimbursed her for both the years 1939 and 1940 for household and living expenses which had been paid by her.

The petitioner places great reliance on the fact that Mrs. Laughlin contributed $ 500 to the capital of Simmons-Laughlin & Co., the corporation, and, on the first impression, it might seem that the fact brings this case within the rule of , reversing . The facts in the two cases, however, are quite different. In the Humphreys case there was a direct contribution of capital by the wives to the partnership venture. The amounts contributed were substantial and there was no showing or claim that the husbands were in any way the source of funds contributed. In the instant case it is apparent that at all times capital played a very minor part in the businesses carried on, and, while we consider it of passing interest only, some doubt might even be expressed as to whether the relationship of husband and wife rather than the investment of funds was not the controlling consideration in Mrs. Laughlin's ownership of the Oklahoma corporation stock. 1945 U.S. Tax Ct. LEXIS 199">*244 A prior gift by Laughlin to her was, so far as appears, the source of the $ 500 advanced by her; and during the life of the corporation she had received as or under the guise of salaries from $ 3,000 to $ 3,600 per year, but there is no information as to the services for which the claimed salaries were paid, and there is no reason to believe that they were any more substantial than the services rendered by her during the taxable years for the partnerships. We have already noted the apparent disregard by Laughlin and Simmons, at the time of the formation of the Texas partnership to take over the Texas business, of any interest Mrs. Laughlin may have claimed in such business by reason of her ownership of stock in the corporation. Previously noted also was the explanation that the disregard of her rights in the Texas4 T.C. 1012">*1033 business was the occasion for increasing her interest in the Kansas partnership from 10 to 25 percent, but with it was the admission that no effort was made to determine the relative values of the interests in the Kansas and Texas businesses. Furthermore, if capital had been of material importance in the operation of the businesses and in the production of1945 U.S. Tax Ct. LEXIS 199">*245 income, and the funds used and dispensed by Mrs. Laughlin were her own funds, she did not draw on the corporation for her capital interest in the Kansas partnership, but paid $ 232.87 in cash, that amount being 25 percent of the total capital invested in the Kansas partnership. All of these facts or incidents, it would seem, may be taken as some indication that the parties themselves did not consider the ownership of stock in the prior corporation of controlling importance, and make this case distinguishable from

In , it was held that income is taxable to him who earns it, and in , an attempt to avoid that rule by indulging in partnership formalities was held to be of no avail. In the instant case, we do know from the evidence that one of the motives for indulging in the partnership form of operation was the saving of income taxes. We also know that capital was not a factor of any moment in the production of income and that the income did result from services rendered by Laughlin and Simmons, for1945 U.S. Tax Ct. LEXIS 199">*246 whom no salary or compensation allowance was made, and by the employees, whose salaries or compensation was paid currently from the income produced. We accordingly hold that the respondent did not err in his inclusion in the income of Laughlin of that part of the income of Laughlin, Simmons & Co. and Laughlin, Simmons & Co. of Kansas, which had been reported by Sarah Laughlin as her income.

Decisions will be entered under Rule 50.