
    WALDBURGER v. HELVERING.
    No. 45.
    Circuit Court of Appeals, Second Circuit.
    Nov. 5, 1942.
    Harry W. Stelle, Jr., and Albert R. Palmer, both of New York City, for petitioner.
    Newton K. Fox, Sp. Asst. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., for respondent.
    Before L. HAND, CHASE, and FRANK, Circuit Judges.
   PER CURIAM.

This appeal turns altogether upon whether the taxpayer and his wife actually formed a partnership or merely pretended to form one, the taxpayer remaining the owner of the business as he had been before. From the discussion of the evidence in the opinion of the Court below, it appears that it meant to find that they did not form a partnership, and the following passages can serve as findings to that effect. The “petitioner’s evidence falls far short of establishing his contentions.” “We are unable to find any evidence * * * that would justify us in concluding that the relation of petitioner’s wife to his business was changed in any material way.” It is true that we should have been grateful for a plainer commitment upon the issue, especially in view of another statement in the discussion, “The only real purpose of the agreement was a division of income, all of which was earned by petitioner,” which suggests that the purpose might be material, even though a real partnership had been formed, which would be erroneous. However, we think that it would be captious to seize upon this to throw any doubt upon the findings as a whole. There was ample evidence to support the conclusion that no partnership was formed; it would indeed be difficult to come to any other.

Order affirmed.  