7 T.C. 1088">*1089 This proceeding involves deficiencies in income tax for the calendar years 1937 and 1938 in the amounts of $ 50,062.421946 U.S. Tax Ct. LEXIS 42">*44 and $ 7,356.74, respectively. Petitioner claims an overpayment for the same years of $ 15,699.76 and $ 4,983.14.

The deficiencies are due to several adjustments to petitioner's net income as disclosed by his returns for the years 1937 and 1938 which the petitioner contests by appropriate assignments of error. The parties agreed by stipulation to an adjustment of all the issues involved in the liability for the year 1938 and agreed upon the adjustment of all issues involved in the tax liability for the year 1937, except one. Effect will be given to these stipulations in the recomputation under Rule 50.

These stipulations leave for our consideration only the contested adjustment for the year 1937 which was explained by the respondent in a statement attached to the deficiency notice as follows:

1 -- It is held (a) that a capital gain of $ 99,899.98 was realized from the sale of a fractional interest in Lehman Brothers partnership in the year 1937, and (b) that the holding period for the purpose of applying the percentage rates specified in Section 117 of the Revenue Act of 1936 is measured from the date or dates of acquisition by the partnership of the specific partnership assets 1946 U.S. Tax Ct. LEXIS 42">*45 which the partnership owned at the date of sale of the fractional interest. Accordingly, it has been determined that $ 81,143.24 of the total gain realized is subject to tax computed as follows:

To the foregoing adjustment made by the Commissioner, the petitioner assigned errors as follows:

(a) The Commissioner erred in holding that the holding period for the 1946 U.S. Tax Ct. LEXIS 42">*46 purpose of applying the percentage rates specified in section 117 of the Revenue Act of 1936 to the capital gain determined by him to have been realized by petitioner from the sale in 1937 of a fractional interest in the partnership of Lehman Brothers was to be measured from the date or dates of acquisition by the partnership of the specific partnership assets which the partnership owned at the date of such sale.

(b) Even if the Commissioner did not err in the respect set forth in subparagraph (a) above, in applying the percentage rates specified in section 117 of the Revenue Act of 1936 to the capital gain determined by him to have been realized by petitioner from the sale in 1937 of a fractional interest in the partnership of Lehman Brothers, the Commissioner erred in attributing the gain to the different holding periods of the partnership assets in proportion to the market value of the partnership assets having the same holding periods.

(c) If the Commissioner did not err in the respect set forth in subparagraph (a) above, in applying the percentage rates specified in section 117 of the Revenue Act of 1936 to the capital gain determined by him to have been realized by petitioner1946 U.S. Tax Ct. LEXIS 42">*47 from the sale in 1937 of a fractional interest in the partnership of Lehman Brothers, the Commissioner erred in applying the capital gains and losses provisions of section 117 of the Revenue Act of 1936 to securities held by the partnership as a dealer in such securities.

FINDINGS OF FACT.

The case was submitted upon a stipulation of facts incorporating as a part thereof certain exhibits and upon oral testimony. The stipulation 7 T.C. 1088">*1091 is incorporated herein by reference and adopted as part of our findings of fact.

Petitioner is an individual residing at Tarrytown, New York. His return for the calendar year 1937 was prepared on the cash basis and filed with the collector of internal revenue for the second district of New York at New York City.

Lehman Brothers is a copartnership engaged in a general financial, investment, and brokerage business. Since 1929 the partnership has been located at 1 William Street, New York, New York, and its business has been conducted under the laws of the State of New York. The partners have from time to time changed, some partners having died or withdrawn and some new persons having been admitted as partners.

Petitioner became a partner in 19081946 U.S. Tax Ct. LEXIS 42">*48 upon the acquisition of a capital interest of $ 500,000, and his capital account and interest fluctuated between that date and December 31, 1925, by reason of various cash withdrawals from and contributions to partnership capital. As of December 31, 1925, petitioner's capital account in the partnership as then constituted was $ 1,035,710.59, which represented a 14.99 per cent interest in the partnership. Thereafter, from December 31, 1925, until December 31, 1935, the capital account of the petitioner and his percentage interest with relation to the total capital of the partnership as constituted at the several times fluctuated as follows, by reason of withdrawals from and additions to capital by the petitioner and the other partners:

1946 U.S. Tax Ct. LEXIS 42">*49 At all times material herein, subsequent to December 31, 1925, the capital of the petitioner was not less than $ 1,035,710.59 and his percentage interest in the partnership as constituted at any time was not less than 13.425 per cent.

As of January 1, 1936, the partners signed a new partnership agreement with themselves and one Edward J. Bermingham, under which the said Edward J. Bermingham was admitted to membership in the partnership as a capital partner. The capital partners and their capital accounts under the new agreement were as follows: 7 T.C. 1088">*1092

No change in the above capital accounts of the partners occurred prior to the death of Arthur Lehman on May 16, 1936.

In this same partnership agreement of January 1, 1936, it was agreed that before determining the net profits for 1936 certain deductions should be made which are not needed here. It was agreed that after those deductions the remaining net profits should be divided in the following proportions:

1946 U.S. Tax Ct. LEXIS 42">*50 On May 16, 1936, Arthur Lehman died and in accordance with the provisions of the partnership agreement dated January 1, 1936, the interest of the decedent was continued in the firm until June 30, 1936. As of July 1, 1936, the capital account of the decedent was transferred on the books of the partnership to an account payable to his estate. By reason of the transfer the total capital of the partnership was reduced from $ 12,500,000 to $ 10,118,750, where it remained through December 31, 1936. The liability of the firm to the estate of the deceased partner was thereafter liquidated in accordance with the terms of the partnership agreement. The partnership agreement drawn January 1, 1936, provided that the partnership should be continued if partners having together more than 50 per cent of the capital of the partnership should so determine. The remaining partners, having more than 50 per cent of the capital of the partnership, determined to continue in partnership with the surviving partners and they continued in business through December 31, 1936.

Upon changes in the partnership personnel and their capital accounts during the period 1925 to 1937, new partnership agreements were1946 U.S. Tax Ct. LEXIS 42">*51 executed. Such changes had no effect on the partnership business. The business was not formally terminated, but continued in the same manner and under the same firm name throughout this period. The books and records of the partnership were not formally closed after such changes in personnel and interests, but adjustments were made in the appropriate accounts. Outstanding underwriting contracts and other agreements of the firm in connection with its investment banking business continued unchanged.

On January 1, 1937, upon the admission of certain new capital partners, the continuing partners and the new capital partners signed a 7 T.C. 1088">*1093 new partnership agreement. The respective capital accounts of said partners, including the petitioner, were as follows:

It was also agreed in this partnership agreement that after certain deductions not needed here1946 U.S. Tax Ct. LEXIS 42">*52 the remaining net profits or losses of the partnership should be divided in the following proportions:

The reduction in the partnership capital from $ 10,118,750 as of December 31, 1936, as set out above, to $ 10,000,000 as of January 1, 1937, was effected on January 1, 1937, by actual withdrawals in cash and charges to the respective capital accounts of certain other continuing partners as follows:

As of January 1, 1937, on the admission of new capital partners to Lehman Brothers, the petitioner, Robert Lehman, Philip Lehman, and John D. Hertz each sold a fractional part of his property rights in the partnership to one of the continuing partners, Edward J. Bermingham, and to the five new capital partners, John M. Hancock, Paul M. Mazur, William J. Hammerslough, 1946 U.S. Tax Ct. LEXIS 42">*53 Thomas H. Hitchcock, Jr., and Joseph A. Thomas. The property rights sold by the petitioner to the buying partners constituted a fractional share of his interest in the partnership. The selling partners made actual cash withdrawals from the partnership of the amounts of the reduction in their capital accounts from that set forth in the partnership agreement on January 1, 1936 (but after the reduction in capital of $ 118,750 described above) and the amounts of their capital accounts provided for in the new partnership agreement dated January 1, 1937. 7 T.C. 1088">*1094 At the same time the buying partners contributed to the partnership the amount of their capital account as provided for in the partnership agreement and as set out above.

As of January 2, 1937, and as a part of the same transaction, each of the buying partners caused a letter to be sent to the partnership confirming their understanding of the transaction and agreeing to pay to the selling partners in proportion to their interest in the capital of the firm on December 31, 1936, an amount equal to a certain percentage of the excess over cost on its books of the value of the assets of the firm on December 31, 1936, after such1946 U.S. Tax Ct. LEXIS 42">*54 assets had been valued by the partners holding more than 50 per cent of the capital of the partnership. In accordance with this understanding, the buying partners made payments (in excess of their capital contributions) to the selling partners as follows:

By reason of these transactions, the selling partners received the following amounts as withdrawals in capital and payments by the buying partners, and the excess of the amounts received over the reduction in their capital account is as follows:

The cost or other basis of that which the petitioner sold as described above for the determination of gain was $ 345,000. The gain of the petitioner on the sale (by reason of certain1946 U.S. Tax Ct. LEXIS 42">*55 adjustments made between the selling partners including the petitioner) was $ 99,899.58.

In connection with the transaction set out above, the petitioner executed no bill of sale with respect to any specific assets of the partnership or any other document, other than the January 1, 1937, partnership agreement. The partnership assets were at all times during the transaction carried in the partnership name and on its books on the basis of cost, and the books did not reflect any fluctuations in the value of these assets.

7 T.C. 1088">*1095 OPINION.

Petitioner contends that the sale by the petitioner on January 1, 1937, of a fractional share of his partnership interest in Lehman Brothers constituted a sale of a "capital asset" held for more than 10 years and only 30 per cent of the gain on the sale is to be taken into account under section 117 of the Revenue Act of 1936 ¹ in computing the petitioner's net income for the calendar year 1937.

1946 U.S. Tax Ct. LEXIS 42">*56 Respondent's contention is that, where a partner sells his property rights in a partnership, the holding period which determines the amount of capital gain or loss to be taken into account is fixed by the period during which the specific partnership assets were held. He urges that, in effect, the transaction was the sale of a right to a part of the appreciation in value of the firm assets, if and when it was realized; that even though no particular securities were sold, the sale of petitioner's interest enabled the petitioner to realize a part of the appreciation in the value of those assets; that the amount of $ 99,899.58 is the gain realized by the petitioner from the sale of his right to a part of the appreciation in value to the buying partners, of which he determined, in his deficiency notice, $ 81,143.24 should be taken into account as capital gains under the provisions of section 117. He maintains that this appreciation in value which the petitioner realized in 1937 arose over the period of years during which the partnership assets were held as such, and during all that period the petitioner was a coowner in partnership of those assets; that to accomplish the purpose and 1946 U.S. Tax Ct. LEXIS 42">*57 intent of the statute it is proper to determine the amount of his gain by reference to the holding period of the assets to which the appreciation attached. Respondent, in the alternative, contends that, assuming that petitioner sold a fractional partnership interest, the sale was made from the sale of a partnership interest which petitioner held less than one year.

The answer to the first issue herein depends upon the nature of the partnership interest sold. This interest is to be determined under the 7 T.C. 1088">*1096 laws of New York. Blair v. Commissioner, 300 U.S. 5">300 U.S. 5, 300 U.S. 5">9. A partnership interest is a capital asset. Dudley T. Humphrey, 32 B. T. A. 280. In the latter case the taxpayer was a member of a New York partnership and in 1929 he sold his interest in the partnership to his other partners. He contended that he had owned his interest in the partnership for more than two years and that his gain from the sale was capital gain and should be taxed as such. The Commissioner contested this theory and taxed the gains as ordinary income, of which 100 per cent should be taken into account. In our report in that case we stated1946 U.S. Tax Ct. LEXIS 42">*58 the Commissioner's position to be as follows:

* * * Respondent's argument * * * is based on the theory that a partner's interest in the partnership consists of a joint ownership with the other partners of the partnership assets. The assets in this case consisted of securities held by the partnership primarily for sale; hence, respondent argues, they were not capital assets.

We decided against the Commissioner and upheld petitioner's contention that the sale was of "capital assets" and, among other things, said:

Now, applying the above holdings to the present case, it would appear that what petitioner sold to his partners was an intangible consisting of his right to a share in the net value of the partnership after settlement of its affairs. He had no interest in the assets of the partnership as such; consequently, what he sold was not a portion of or an interest in the partnership securities. His interest in the partnership was separate and distinct from his coownership of the partnership assets and the length of time of his ownership of the partnership interest is not measurable by the period of time that the partnership had owned the securities on hand at the time he sold his1946 U.S. Tax Ct. LEXIS 42">*59 interest. He had owned his interest more than two years and in our opinion it constituted a capital asset in his hands.

To the same effect was our decision in Morris Shapiro, B. T. A. memorandum opinion, Jan. 20, 1940, affd., 125 Fed. (2d) 532. See also Robert E. Ford, 6 T.C. 499.

The Third Circuit adopted the same view as above expressed in Thornley v. Commissioner, 147 Fed. (2d) 416, reversing George H. Thornley, 2 T.C. 220. In pointing out in that case that the Commissioner had cited City Bank Farmers Trust Co. v. United States, 47 Fed. Supp. 98, in support of his contention, the court, among other things, said:

The Government has cited City Bank Farmers Trust Company v.United States, * * * in which the Court of Claims held that when a partner sells his interest in a partnership business the holding period for purposes of Sec. 117 (a) is to be measured not from the date of acquisition of the partnership interest, but from the date when the partnership acquired the specific partnership assets which it owned1946 U.S. Tax Ct. LEXIS 42">*60 at the date of sale of the interest. That ruling is in direct conflict with the view which we expressed in Kessler v.United States, supra, and we cannot subscribe to it.

7 T.C. 1088">*1097 The very point we are now discussing was considered in Kessler v.United States, Dist. Ct., E. Dist. Pa., 1941; reversed on other grounds, 124 Fed. (2d) 152 (C. C. A., 3d Cir., 1941). ² There the District Court was considering the nature of the property rights involved in the transfer of a partnership interest. The Court said:

The plaintiff does not contend that the partnership law supposes the firm as an independent juristic entity. That it does not was made abundantly clear by Judge Hand in Helvering v. Smith, 90 F. (2d) 590. All that the plaintiff contends is that when a partner sells his interest in the partnership, he has sold, not a fractional title to specific assets acquired by the firm, but certain rights in connection with those assets which he acquired when he entered the firm, and that these rights make up a taxable unit for determining his gain or loss; and it seems clear that the law has reached that point 1946 U.S. Tax Ct. LEXIS 42">*61 without recognizing the separate existence of the firm as an entity.

In view of what we have said above and the authorities we have cited, we hold that what petitioner sold on January 1, 1937, was a fractional part of his interest in the partnership of Lehman Brothers and not in the specific securities which were owned by Lehman Brothers at the time of sale, and that the period of time of holding of the interest sold is to be determined by the length of time petitioner had held the interest sold and not the time the partnership of Lehman Brothers had held the securities which it then owned. As we have already stated, the amount of petitioner's gain from the sale is not in dispute. The parties are agreed on that. The question is how much of the gain is to be taken into account under section 117, and that in turn depends upon the period of petitioner's holding of the property sold.

1946 U.S. Tax Ct. LEXIS 42">*62 But the determination of the first issue in petitioner's favor does not decide the case in petitioner's favor. We must decide how long the interest which petitioner sold on January 1, 1937, had been held by him. Merten's Law of Federal Income Taxation, vol. 3, sec. 22.27 says, among other things:

Under the present law the period of holding determines the amount to be taken into account in determining net income, and in no way affects the question whether the property qualifies as a capital asset. When it is determined whether the property falls within the definition of a "capital asset," it is necessary to ascertain the period for which the property has been held. The burden is on the taxpayer to show the length of time that he has held the property.

It is respondent's contention in the alternative that if this Court should hold against his main contention, that what petitioner sold was his interest in certain specific securities owned by the partnership, and should hold that what petitioner sold was his interest in the partnership as such, then the interest which petitioner sold on January 1, 7 T.C. 1088">*1098 1937, had been held less than one year. Respondent's contention in this1946 U.S. Tax Ct. LEXIS 42">*63 respect, as we construe his argument, is based upon two grounds: (1) That the interest sold by the petitioner has not been identified and could only come from the increased interest in the profits of the firm received by the petitioner after the death of Arthur Lehman on May 16, 1936; and (2) that the partnership of Lehman Brothers at the time of the sale was a new partnership which had been in existence less than one year.

We shall deal with these two contentions separately in their order. In discussing the Commissioner's contention (1), he directs our attention to the fact that we do not have here a situation where a partner has disposed of his entire interest in the partnership and is retiring from the firm, such as we had in Dudley T. Humphrey, supra, and in Morris Shapiro, supra.

In the Humphrey case, Humphrey owned a one-ninth interest in the partnership of Waterman & Co., which he acquired in 1926 and sold in 1929. Between these two dates, so far as the record shows, there had been no change in the partnership interest which he owned. Under those circumstances, we held that the taxpayer was entitled to report his gain under the capital1946 U.S. Tax Ct. LEXIS 42">*64 gains provisions of the statute and that the time of holding of the partnership interest was the length of time which intervened between the time he acquired it and the time he sold it.

In the Morris Shapiro case, the taxpayer and Joseph S. Menke in January 1926 organized a partnership under the name of Keystone Laboratories, and each owned a one-half interest. On April 24, 1934, the taxpayer sold his one-half interest to his partner, Joseph S. Menke, and Menke's wife. The record did not show any change in the taxpayer's partnership interest from the time he acquired it in 1926 to the time he sold it in 1934. Under those circumstances we held, following Dudley T. Humphrey, supra, that the taxpayer's gain from the sale should be taxed as a capital gain and not as ordinary income. The Sixth Circuit, in affirming our decision in the Shapiro case, said:

It is fundamental in applying tax statutes that matters of substance are of first importance. The price paid for the property in question may have been based partly on assets excluded under the act from the phrase "capital assets" such as inventories or property held by the partnership primarily1946 U.S. Tax Ct. LEXIS 42">*65 for sale to customers in the ordinary course of its trade or business, but the sale made by respondent was not a sale of those assets. It is a well settled rule of law that the joint effects of a partnership belong to the firm and not the partners and that a partner has no individual property in any specific assets of the firm, instead the interest of each partner in the partnership property is his share in the surplus, after the partnership debts are paid and after the partnership accounts are settled. Blodgett v. Silberman, 277 U.S. 1">277 U.S. 1, 277 U.S. 1">10, 48 S. Ct. 410">48 S. Ct. 410, 72 L. Ed. 749">72 L. Ed. 749. Respondent sold all of his interest in the partnership, tangible and intangible, as a going concern, which in all essentials is different from the ordinary assets of the partnership used in the usual course of its business. * * *

7 T.C. 1088">*1099 There are two differences from the facts in the instant case and those which were present in the Humphrey and Shapiro cases: (1) In the instant case the facts show that from December 31, 1925, to December 31, 1936, petitioner's percentage interest in the partnership of Lehman Brothers fluctuated to a considerable1946 U.S. Tax Ct. LEXIS 42">*66 extent, though at all times it greatly exceeded the partnership interest which he sold January 1, 1937; (2) petitioner did not sell his entire interest as in the Humphrey and Shapiro cases, but only a fractional part of it. The petition, in paragraph 5 (b), alleges that:

* * * The interest sold by petitioner was a 3.45% interest in the partnership. The difference between $ 444,899.98, what petitioner received for the 3.45% interest, and $ 345,000, his basis therefor, is the equivalent of 3.45% of the net appreciation in the value of the assets above their cost. Petitioner had held his partnership interest in Lehman Brothers for more than ten years.

Respondent, in his answer, denies the allegations of subparagraph (b) of paragraph 5, except it is admitted that petitioner on January 1, 1937, sold a fractional interest in the partnership known as Lehman Brothers. Respondent, although conceding that petitioner on January 1, 1937, sold a fractional part of his interest in the partnership, contends that petitioner has failed to identify the interest which he sold as one which he had held for more than 10 years or any other period in excess of one year. Respondent's argument1946 U.S. Tax Ct. LEXIS 42">*67 in support of this position is summarized in his brief as follows:

The stipulation of facts shows that during the period commencing December 31, 1925, and ending January 1, 1937 -- more than ten years -- the petitioner's interest in the business of Lehman Brothers and in the partnership conducting that business was at no time less than 13.425%; that during the period the amount of the interest fluctuated; that on January 1, 1936, the interest was 19.05%; that on July 1, 1936, after the withdrawal of the deceased partner's capital, the interest was 23.53%; that the 23.53% interest continued until the sale on January 1, 1937, after which the petitioner's interest was 20.08%.

From these stipulated facts it is apparent that the petitioner did not hold continuously for any period longer than a year any greater interest than 19.05% and that after the sale he still held an interest greater than 19.05%.

If, on January 1, 1937, the petitioner had sold his entire interest (23.53%) at least 4.48% would have been an interest held for less than one year. Why the lesser interest (3.45%) when sold should be considered to be a part of interest held more than a year rather than a part of the interest1946 U.S. Tax Ct. LEXIS 42">*68 held less than one year is not apparent and the petitioner does not even attempt to identify the interest sold by stating his intention to sell one interest rather than the other. Much less does he attempt any factual identification.

In these circumstances the logical and reasonable view seems to be that the sale was made from the interest held less than one year. That interest was in fact reduced by the sale, while the interest held more than one year was not in fact reduced; the petitioner after the sale held a larger interest (20.08%) than any interest he had held continuously for more than one year (19.05%).

Petitioner's answer to the foregoing argument of respondent, we think, may be summarized by the following quotation from his brief:

7 T.C. 1088">*1100 The facts of this case disclose that during the ten-year period immediately prior to the sale by the petitioner of the fractional share of his partnership interest on January 1, 1937, there were certain changes in the partners of Lehman Brothers. Thus during this time two of the partners died, certain new partners were admitted to the firm and one partner withdrew entirely. New partnership agreements were executed by the partners1946 U.S. Tax Ct. LEXIS 42">*69 so as to reflect the necessary shifts in the firm's capital and the interests in the profits after each contemporaneous change in personnel and the partnership capital.

The record is clear, however, that these changes in the membership of the firm had no effect on the continuation of the firm's business or on the continuing nature of the petitioner's investment or interest therein. At no time was the business of the partnership terminated or even interrupted. The firm's books and records were never closed after any of these changes. Outstanding underwriting contracts or other agreements were continued in their original form. In like manner the petitioner's investment or partnership interest remained unchanged. The partnership in fact was never liquidated nor were its assets distributed in cash or in kind to the partners.

In view of the foregoing facts which he cites in his brief, petitioner argues that since at all times after 1925 he owned an interest in Lehman Brothers of not less than 13.425 per cent and on January 1, 1937, he sold a fraction of his interest which was much less than he had at all times owned for more than 10 years, it should be held that the interest which1946 U.S. Tax Ct. LEXIS 42">*70 he sold was one which he had held for more than 10 years. We think that on the facts which are detailed in our findings of fact petitioner must be sustained in this contention unless we should sustain respondent's alternative contention (2), that the partnership of Lehman Brothers at the time of the sale was a new partnership which had been in existence less than one year.

It seems manifest that it would not have been possible for petitioner to have made any better identification of the fractional interest in Lehman Brothers which he sold than he has made. The facts which are stipulated seem to cover all the relevant facts. He could not make any such identification, for example, as the owner of shares of corporate stock can make when he has purchased certain shares on different dates and at different prices. Therefore, unless respondent's second alternative contention, that an entirely new partnership came into being upon the death of Arthur Lehman in 1936 and that petitioner's interest in such new partnership dated from that date, we think we must sustain petitioner in his contention that the interest which he sold was one which he held for more than 10 years.

We shall now discuss1946 U.S. Tax Ct. LEXIS 42">*71 respondent's alternative contention (2). Respondent argues that under the laws of New York ³ the death of Arthur Lehman in May 1936 dissolved the existing partnership, even though the articles of partnership provided that the business of the 7 T.C. 1088">*1101 partnership might be continued by the surviving partners. It is true, of course, that the death of Arthur Lehman in May 1936 did dissolve the partnership under the laws of the State of New York. It is stipulated, however, that settlement was made with the estate of Arthur Lehman as provided in the partnership agreement and that:

* * * Subsequent to the death of the said Arthur Lehman and in accordance with the provisions of Article Twenty-first of Exhibit 1-A, the remaining partners having more than 50% of the capital of the partnership determined to continue in partnership with the surviving partners and in fact continued in business under the terms and provisions of Exhibit 1-A through December 31, 1936.

1946 U.S. Tax Ct. LEXIS 42">*72 Exhibit 1-A referred to above was the partnership agreement of Lehman Brothers entered into on January 1, 1936, when Edward J. Bermingham was taken in as a partner. This partnership agreement began by saying:

Whereas, the parties hereto, other than the party of the fourth part [Edward J. Bermingham], are partners in the partnership of Lehman Brothers; and desire to continue the partnership of Lehman Brothers and to admit the party of the fourth part to membership in said partnership;

Now, Therefore, the parties hereto agree as follows: [Then follow the various provisions of the partnership agreement.]

Therefore, it seems clear to us from the foregoing that the old partnership of Lehman Brothers continued to be carried on by the surviving partners, notwithstanding the death of Arthur Lehman, and that no such new partnership came into existence as would start a new period of holding of the partnership interests of the surviving partners who continued to carry on the partnership business. What we said in Robert E. Ford, supra, is, we think, appropriate here as to the consequences following the death of Arthur Lehman:

* * * The partnership, as such, engaged1946 U.S. Tax Ct. LEXIS 42">*73 in no transaction affecting it as a computing unit. It continued after the withdrawal of the partner in the same business, under the same name, without interruption, as agreed. Realistically speaking, the only change that has taken place is that the remaining partners have acquired a greater interest in the profits and surplus when final liquidation occurs. After that transaction occurred, the partnership had the same identical assets as before. The partnership as a computing unit has neither disposed of any of its old assets nor acquired any new assets. * * *

Continuing further, we said in the Ford case:

* * * The respondent suggests that the withdrawal of the partner whose interest was purchased on November 26, 1938, constituted a dissolution or termination of the partnership and the commencement of a new partnership. By the general rule of law, death or withdrawal of a partner dissolves the partnership, but it is competent for the parties to provide otherwise. As stated by Rowley in his work on Modern Law of Partnership (sec. 550):

"* * * Whatever in the absence of express agreement of all partners may be the technical effect of the admission of a new member or retirement1946 U.S. Tax Ct. LEXIS 42">*74 of an old member, these conditions are ordinarily cared for by agreement, either under 7 T.C. 1088">*1102 provisions in partnership articles authorizing a retirement, or arrangements made by the partners at the time of retirement. * * *"

Cf. Burwell v. Mandeville's Executors, 2 How. 560">2 How. 560, 2 How. 560">576.

As we have already stated, the facts of the instant case disclose that during the 10-year period immediately prior to the sale by petitioner of the fractional share of his partnership interest on January 1, 1937, there were several changes in the partners of Lehman Brothers, including the change brought about by the death of Arthur Lehman. These changes were usually followed by the execution of new partnership agreements. The record is clear, however, that these changes in the membership of the firm had no effect on the continuation of the firm's business or on the continuing nature of the petitioner's investment or interest therein. During all of these changes he remained a member of the partnership with an interest which at no time was less than 13.425 per cent of the whole. Therefore, we hold against respondent's alternative contention (2) and conclude that the1946 U.S. Tax Ct. LEXIS 42">*75 death of Arthur Lehman in 1936 did not work such a change in the partnership of Lehman Brothers as to cause a change in the period of holding of petitioner's interest in the partnership, nor did the other changes which took place from time to time over the period 1925 to 1936, inclusive, do so.

We, therefore, conclude from all the facts that the fractional interest in Lehman Brothers which petitioner sold on January 1, 1937, was one which he had held for more than 10 years and that only 30 per cent of the gain from such sale should be taken into account under the provisions of section 117 of the code.

Decision will be entered under Rule 50.

Harlan, J., dissenting: I agree with the contentions of the Commissioner in this case that the original partnership was destroyed on May 16, 1936, with the death of the partner, Arthur Lehman, and that the partnership interest which the taxpayer sold was an interest in a new partnership formed after May 16, 1936, and that his rights as to claiming a long term capital gain must be dated from the date of the formation of the new partnership. The case principally relied upon by the prevailing opinion, Robert E. Ford, 6 T.C. 499,1946 U.S. Tax Ct. LEXIS 42">*76 does not seem to be authority for the conclusion of the prevailing opinion. In the Ford case a partner withdrew from a partnership and disposed of his interest. The Uniform Partnership Act, which was then in force in the State of Minnesota, where the question arose, provided that a transfer of interest does not of itself dissolve a partnership.

7 T.C. 1088">*1103 In the case at bar section 62 of the Partnership Law of New York specifically provides that a partnership shall be dissolved by the death of any partner. This clause was directly under consideration by the Circuit Court of Appeals for the Second Circuit in Darcey v. Commissioner, 66 Fed. (2d) 581; certiorari denied, 290 U.S. 705">290 U.S. 705, wherein it was held that after the death of a partner the partnership could not be maintained against a provision of the statutory law of New York by any contract between the parties. The court held that the partners could agree as to a division of partnership income after the death of a partner, but that such agreement did not result in prolonging the life of the partnership. Therefore the partnership of Lehman Brothers expired with 1946 U.S. Tax Ct. LEXIS 42">*77 the death of Arthur Lehman and the interest which the taxpayer held in that partnership prior to Arthur Lehman's death terminated at that time.