8 T.C. 423">*423 The Commissioner determined a deficiency in petitioner's income tax for the taxable year ended December 31, 1943, in the amount of $ 8,966.16. The questions presented are whether the Commissioner erred in taxing to petitioner all the income from an alleged partnership composed of petitioner and his wife, and whether any part of the income from certain real estate is taxable to petitioner's wife by reason of the fact that title thereto is in the name of petitioner and his wife as tenants by the entirety.

FINDINGS OF FACT.

Petitioner1947 U.S. Tax Ct. LEXIS 268">*269 is an individual, residing in Portland, Oregon. He filed his income tax return with the collector of internal revenue at Portland, Oregon, for the period involved here.

8 T.C. 423">*424 Petitioner and his wife, Gertrude, were married in 1925, at a time when petitioner was employed as a carpenter by the day. Neither had any money or property at that time. Shortly after their marriage they purchased a piece of real estate which had a garage on it, making a down payment of $ 50. Title was vested in petitioner and his wife as tenants by the entirety. They later paid for it in full. Their only source of income at that time was the earnings of petitioner from his employment. They lived in the garage while they built a house in which they intended to make their home. Both petitioner and his wife did the physical labor required for the erection of the house. After living in the new house for a time they decided they could not afford to continue to do so, so they rented another home and sold the new house on contract. The purchaser defaulted and the house was repossessed at a loss and sold in 1936.

In 1933 petitioner purchased another piece of property, on which he built a house. Title1947 U.S. Tax Ct. LEXIS 268">*270 to this property was in petitioner alone, and this improved property was later sold.

In 1934 one-half of a lot was purchased, on which a house was built for sale. Title to this property was in Edwin and Gertrude Sandberg, as husband and wife.

At about this time petitioner began to engage actively in the contracting business, in addition to his work as carpenter. Gradually he ceased working as a carpenter. Most of his business as a contractor was that of a speculative home builder, buying vacant properties and building houses on them for sale, but on occasion he has done construction work on property owned by others at a contract price or on a cost-plus basis. This business required the purchase of unimproved property.

In 1935 three pieces of property were purchased in the name of Edwin and Gertrude Sandberg, husband and wife.

In 1936 ten properties were purchased, of which eight were in the names of Edwin and Gertrude Sandberg, and two were in the names of petitioner alone.

In 1937 five properties were purchased, of which two were in the names of Edwin and Gertrude Sandberg, and three in the name of petitioner alone.

In 1938 six properties were purchased, of which four were in1947 U.S. Tax Ct. LEXIS 268">*271 both names, as husband and wife, and two were in the name of petitioner alone.

In 1939 ten were purchased, of which one was in the two names, as husband and wife, and nine were in the name of petitioner alone.

In 1940 nineteen properties were bought, of which fifteen were held by both, and four by petitioner individually.

In 1941 nineteen were bought, all in the names of Edwin and Gertrude Sandberg, as husband and wife.

8 T.C. 423">*425 In 1942 fourteen were bought, all but two of which were bought in the names of Edwin and Gertrude Sandberg as husband and wife. One of these was conveyed on warranty deed to Edwin Sandberg and later quitclaimed to both. Title to this is in Edwin Sandberg alone.

In 1943 six were bought, of which five were taken in the names of Edwin and Gertrude Sandberg as husband and wife, and one of which was in petitioner's name.

It was the practice of petitioner to discuss with his wife the suitability of the various building sites under consideration for the use intended to be made of them. After the lots were purchased, petitioner would proceed with the construction of the house. In the instances when subcontractors were used, petitioner negotiated the terms of 1947 U.S. Tax Ct. LEXIS 268">*272 such contracts and signed them. After the major construction was completed petitioner's wife occasionally would consult with paperhangers and painters concerning the color schemes and with the electricians pertaining to the location of electrical outlets.

In the earlier years, on occasion, she cleaned the windows and plumbing and prepared the houses for showing to prospective purchasers. In recent years this work has been done by crews of workmen. Also, on some occasions, she has shown the houses held for sale to interested persons. She has always answered the telephone at their home, which they have used as an office, taken messages, handled invoices, and collected rents, and has done such similar tasks as could be done at home. She had three children and she took full care of them and of the household duties without outside domestic help.

When the properties were sold, the receipts were placed in bank accounts which were in the joint names of petitioner and his wife and from which all expenses of either, both business and personal, were paid. The profits reflected on the books were arrived at by deducting from sale prices the actual cost of construction, without any allowance1947 U.S. Tax Ct. LEXIS 268">*273 for petitioner's services.

Except for the fact that both petitioner and his wife have full access to these joint accounts, and both withdraw funds for either business or personal use whenever they wish, no distribution of profit, as such, has ever been made as between petitioner and his wife.

In 1941, after consulting with an attorney and an accountant, who advised them, among other things, that they could effect a substantial saving in income tax by drawing up a partnership agreement, such an instrument was prepared and signed by petitioner and his wife. The pertinent provisions of the instrument are as follows:

Whereas, the parties hereto are husband and wife and the first party is now and for some considerable time has been engaged in the construction, alteration and repair of buildings, and doing a general contracting business, and

Whereas, the first party desires to make a gift to the second party of a substantial interest in said business and to thereafter operate the same as a partnership 8 T.C. 423">*426 and the second party is willing to accept such gift and become a partner in said business,

Now Therefore, in consideration of the premises and of the mutual covenants herein contained1947 U.S. Tax Ct. LEXIS 268">*274 to be kept by each of the parties, it is understood and agreed as follows:

(1). That the first party does hereby give to the second party a Fifteen Thousand ($ 15,000.00) Dollar interest in the said business.

(2). That beginning with the date of this agreement, the said business heretofore operated by the first party shall be conducted as a partnership.

(3). That any and all profits of the said business shall belong to and go to the parties hereto on the basis of 60 per cent thereof to the first party and 40 percent thereof to the second party. All losses shall be borne by the parties hereto on the same basis, that is, 60 per cent of the losses shall be borne by the first party and 40 per cent of the losses shall be borne by the second party

(4). No salaries shall be drawn by either of the parties hereto, and any drawings made by either of the parties shall be charged to the profits which each of the parties hereto is entitled to receive.

(5). The first party shall act as Manager of the said business and perform all of the duties incident to said position. Provided, however, that no real property shall be purchased by either of the parties hereto without the consent of the other1947 U.S. Tax Ct. LEXIS 268">*275 and no obligation shall be incurred at any bank or trust company in excess of $ 1,000.00 without the consent and signature of the other party.

(6). All moneys of the firm shall be deposited to the credit of the firm in such bank as may be agreed upon, and funds from such account may be withdrawn therefrom upon the check of the other party.

(7). Proper and suitable books of records and accounts shall be kept and shall be open to inspection of either of the parties hereto at any and all times.

(8). The second party shall render such assistance and services as are agreed upon from time to time, including answering and taking of telephone calls; segregation and listing of invoices and receipts; assisting the first party in choosing suitable building sites upon which structures are to be built; assisting the first party in appraising real property which may be taken in upon trade, or which the firm may be purchased; assisting the first party in selecting plans for structures which the firm proposes to build.

(9). Neither of the parties hereto shall sell his or her interest in this firm, or any part thereof, without the consent of the other, and no withdrawals shall be made by the parties1947 U.S. Tax Ct. LEXIS 268">*276 hereto unless a proportionate amount is withdrawn by the other party.

In Witness Whereof, the parties have hereunto set their hands and seals as of the day and year first above written.

Books were opened reflecting a capital account of $ 37,201.15 for Edwin Sandberg, and $ 15,000 for Gertrude Sandberg.

A gift tax return was filed by petitioner, reporting the gift of $ 15,000 to his wife, but no gift tax was due thereon.

The business was carried on in the same manner after the execution of the formal agreement as before.

In 1943 a corporation, called Greater Portland Building Co., was organized for the purpose of owning and operating apartment houses. The stock, except for qualifying shares, was held by petitioner and his wife equally. These apartment houses were constructed by the Edwin 8 T.C. 423">*427 Sandberg Co., the alleged partnership, on land owned by the Greater Portland Building Co., pursuant to contracts between the Edwin Sandberg Co. and the Greater Portland Building Co. The profits realized in 1943 by the Edwin Sandberg Co. by reason of such constructions were in the total amount of $ 19,214.80. During the tax year involved here this corporation paid petitioner $ 3,600 as1947 U.S. Tax Ct. LEXIS 268">*277 salary and paid his wife $ 1,800 as salary.

In April 1945 petitioner entered into a partnership with two other men, contributing $ 10,000 in cash which he withdrew from one of the joint bank accounts previously referred to in which the receipts from all the various building projects had been deposited.

No valid partnership, recognizable for tax purposes, existed between petitioner and his wife.

In 1942 petitioner realized income by reason of the conduct of his business as contractor in the amount of $ 586.70.

In 1942 petitioner and his wife realized income by reason of sales of property held in their names as tenants by the entirety in the total sum of $ 24,481.65.

In 1942 petitioner realized income by reason of a sale of property held in his name in the sum of $ 163.12.

In 1942 petitioner and his wife sustained a loss by reason of the sale of property held in their names as tenants by the entirety in the sum of $ 190.07.

In 1942 petitioner received as income rent from property held in his name the sum of $ 1,133.56.

In 1942 petitioner and his wife received as income rents from properties held in their names as tenants by the entirety in the total sum of $ 8,032.19.

In 1943 petitioner1947 U.S. Tax Ct. LEXIS 268">*278 realized income by reason of the conduct of his business as contractor in the amount of $ 19,484.14, which amount includes the profit resulting from the construction work done for the Greater Portland Building Co., above referred to.

In 1943 petitioner and his wife realized income by reason of sales of property held in their names as tenants by the entirety in the total sum of $ 6,300.14.

In 1943 petitioner and his wife sustained a loss by reason of the sale of property held in their names as tenants by the entirety in the sum of $ 659.24.

In 1943 petitioner received as income rent from property held in his name the sum of $ 8,342.95.

In 1943 petitioner and his wife received as income rents from properties held in their names as tenants by the entirety in the total amount of $ 2,102.29.

8 T.C. 423">*428 OPINION.

The first question before us is whether the alleged partnership between petitioner and his wife is valid for tax purposes. In his petition herein petitioner relies upon the formal document executed in 1941 reciting the gift by petitioner to his wife of a $ 15,000 interest in his business, and the establishment of a partnership on the terms and conditions set out therein. He there1947 U.S. Tax Ct. LEXIS 268">*279 recites that he had been operating the business as a sole proprietor prior to the execution of that agreement, and that the gift of a $ 15,000 interest in the business was a bona fide gift, and that he thereupon formed a business partnership with her which thereafter operated the business.

At the time of the hearing, however, petitioner assumed the position that the partnership had been in existence since 1925, when he and his wife were married, that the alleged gift recited in the agreement of 1941 did not, in fact, occur, and that the agreement was executed and the gift tax return filed as a purely precautionary measure.

It is by now well settled that, in order to sustain a family partnership for tax purposes, it must be shown that the wife contributed either capital, or services of a vital nature. Commissioner v. Tower, 327 U.S. 280">327 U.S. 280; Lusthaus v. Commissioner, 327 U.S. 293">327 U.S. 293. The fact that the wife contributes to the alleged partnership no capital originating separately with her is persuasive against the bona fides and validity of such partnership. 327 U.S. 293">Lusthaus v. Commissioner, supra.1947 U.S. Tax Ct. LEXIS 268">*280

It is agreed that at the time of their marriage neither party owned any capital. Petitioner was employed at a daily wage, which was their only source of income. It may therefore be assumed that the money used for the purchase of the first property, intended for use as their home, and not as a business venture, came from his wages. This home was later sold, and still later repossessed at a loss. There was therefore no profit realized from that initial investment. This was the property on which it is contended petitioner's wife helped him with the physical labor involved in the building. Since, at that stage it was not regarded as a business venture at all, and did not result in a profit to be reinvested in future business ventures, her efforts can not fairly be regarded as any evidence that a business partnership was intended or resulted.

The next property which was bought was presumably also paid for out of petitioner's wages, and title to this property was in petitioner alone. A house was built, and the property sold, but the record does not disclose what profit, if any, resulted. However, from that time on additional property was purchased, developed, and sold, and at no1947 U.S. Tax Ct. LEXIS 268">*281 time was there any outside source of income except such profit and petitioner's personal wages. It is therefore clear that Mrs. Sandberg 8 T.C. 423">*429 never, at any time, contributed any of her own capital to the alleged partnership business.

Her services, excluding those contributed to the first house, as set out above, consisted largely in answering the telephone and looking after such matters as she could handle at home in conjunction with the discharge of her domestic responsibilities, including the care of three children. She occasionally cleaned a house and prepared it for showing to prospective customers in the early years, but this work was thereafter done by crews of workmen. Throughout the period under consideration, she discussed with petitioner the advisability of certain real estate purchases, and frequently selected color schemes and trimmings to be used in the finished houses, and took an interest in the location of electric outlets, etc.

She took no part in either the designing or the actual building of the houses, and the activities outlined above seem to have been a relatively minor contribution to the business and limited to matters in which feminine taste and judgment1947 U.S. Tax Ct. LEXIS 268">*282 would naturally interest itself. They were not, in our opinion, vital in character, or of a managerial or controlling nature, within the rules laid down in 327 U.S. 280">Commissioner v. Tower, supra, and 327 U.S. 293">Lusthaus v. Commissioner, supra.

It is our conclusion, therefore, that the facts in this case, when subjected to the special scrutiny which all such arrangements invite, do not support the claimed existence of a bona fide partnership which can be recognized for tax purposes.

The alternative question is concerned with the fact that the title to most of the properties purchased for development and sale was taken in the names of petitioner and his wife as tenants by the entireties.

The respondent has published a ruling, cited as I. T. 3743, 1945 C. B. 142, to the effect that a husband and wife holding property as tenants by the entireties in the State of Oregon may each report one-half of the income from such property in their separate income tax returns. He does not question the applicability of the principle embodied in that ruling to the facts here, but he suggests that a deduction should be made 1947 U.S. Tax Ct. LEXIS 268">*283 from the proceeds from the sale of each house owned by the entirety in an amount fairly representing the value of petitioner's personal services which contributed to the building of the house, before a division of the profits from the sale is allowed for tax purposes.

This presents a question to which we find no authoritative answer in the decisions. It is the respondent's theory that, unless such a deduction is required, we shall be permitting that which has so often been denied, that is, the division between the husband and wife of liability for tax on income which is essentially compensation for personal services of the husband.

8 T.C. 423">*430 It may be assumed that the rule announced in I. T. 3743, which respondent does not seek to disturb in this proceeding, is based on the fact that under the state law in Oregon, a wife who, with her husband, owns property as tenants by the entireties has a present vested interest in that property and is entitled to one-half the income produced by it. See Ganoe v. Ohmart, 121 Or. 116">121 Or. 116; 254 P. 203. Her estate, therefore, is equal to that of her husband.

The question presented by respondent's1947 U.S. Tax Ct. LEXIS 268">*284 novel suggestion is whether that estate is susceptible of being whittled down because her husband contributed more to the value of the property than she.

In Paul G. Greene, 7 T.C. 142, the taxpayer himself bought the land involved there from his own funds, and caused the construction of the building thereon at his own expense. Title was taken in his name and his wife's as tenants by the entireties. We held the rental income taxable to him to the extent of only one-half, regarding the source of the funds invested in the property as immaterial.

The petitioner here invested, in addition to money, his own time and effort. He expended such time and effort in the improvement of property of which his wife was an equal owner. He had an absolute right to build the buildings on such land, and the increase in the value of the property resulting from its improvement inures to the benefit of the joint estate. See 41 C. J. S., par. 34 (d) (1) (a), Husband and Wife. Thus, petitioner's wife became the equal owner with him of the improved property and entitled to one-half the proceeds from the sale or rental thereof. Petitioner is therefore taxable on only1947 U.S. Tax Ct. LEXIS 268">*285 one-half of such income.

The fact that some part of the value of the joint estate was attributable to personal services of petitioner for which he received no pay, except by way of the increased value of the estate, is not material. Petitioner received no money for his services; he created, by his services, other property of which his wife was, under state law, an equal owner. We are therefore of the opinion that the adjustments suggested by respondent are not proper, and that the petitioner and his wife are each taxable on half of the income arising from the sale or rental of properties held by petitioner and his wife as tenants by the entireties, the amount of income thus divided being neither increased nor decreased by any amount representing compensation to petitioner for his services in constructing improvements on such property.

With respect to the income arising from those properties to which petitioner himself held title, we are of the opinion that he is liable for the tax thereon, and respondent's action in that respect is not erroneous. Similarly, profits received from construction work performed on property owned by other persons or corporations under contract are taxable1947 U.S. Tax Ct. LEXIS 268">*286 to petitioner alone, since they were directly attributable to his services.

8 T.C. 423">*431 The rental income from property held by petitioner and his wife as tenants by the entirety is to be divided for tax purposes between petitioner and his wife.

The losses resulting from the sales of property held as tenants by the entirety are to be divided between petitioner and his wife. Anna S. Whitcomb, 37 B. T. A. 806; affd., 103 Fed. (2d) 1009.

Decision will be entered under Rule 50.