
    RALPH C. PRICE v. THE UNITED STATES, MARTHA GARNER PRICE, THIRD PARTY DEFENDANT
    [No. 597-53.
    Decided July 12, 1956.
    Plaintiff’s motion for rehearing overruled October 2, 1956]
    
    
      
      Mr. Stanley Worth for the plaintiff. Mr. Edward S. Smith and Mr. D. Newton, Famell, Jr. were on the briefs.
    
      Mr. Jerome Fmfc, with whom was Mr. Assistant Attorney General Charles K. Rice, for the defendant. Mr. Andrew D. Sharpe and Mr. Theodore D. Peyser, Jr. were on the brief.
    
      
      Plaintiff’s petition for writ of certiorari denied by the Supreme Court February 25, 1957.
    
   Laeamoee, Judge,

delivered the opinion of the court:

This is a suit to recover an alleged overpayment of Federal income taxes and interest for the calendar years 1945, 1946, and 1947. The sole issue is whether part of the income of the King Cotton Hotel partnership should be taxed to plaintiff, as the defendant contends, or to the plaintiff’s wife, as the plaintiff contends. The plaintiff’s wife was made a third party defendant because if the court decides that plaintiff is entitled to recover she will be required to repay the taxes refunded to her by the Commissioner as a result of his action of taxing the income to plaintiff.

The facts as found by the commissioner of this court may be summarized as follows: The plaintiff and his sister were the only children and heirs of the late Julian Price, who died in October 1946, leaving an estate worth between 3 and 4 million dollars. Mr. Julian Price was president of the Jefferson Standard Life Insurance Company from 1919 until January 1946 when he became chairman of the board and plaintiff became president. The plaintiff had been executive vice president for some time theretofore.

At the time of her marriage to plaintiff in 1937, Mrs. Price had no substantial wealth of her own. In 1943 her gross income was just over $4,350, practically all of which was dividend income from stock given to her by her husband or her father-in-law.

Sometime during the 1930’s plaintiff acquired 51 of the 100 shares of the voting common stock of a North Carolina corporation named the Cotton States Hotel Company, which owned the physical plant and operated the business of the King Cotton Hotel in Greensboro, North Carolina. Forty-seven shares were owned by another family. The corporation also had outstanding $125,000 in nonvoting preferred stock. During the early part of 1937 the corporation employed as manager of the hotel Mr. Haywood Duke, a young hotel executive whose work in another town had made a favorable impression upon the Prices. The assistant manager, employed at the same time, was Mr. Harold Colvert, who had served the King Cotton Hotel in other capacities.

During World War II installations of the armed services were located in or near Greensboro. The camps gave a fillip to the local hotel business. The year 1943 was the most profitable year, up to that time, in the history of the Cotton States Hotel Company. Its gross profits for that year were, in round numbers, $179,000, and its net income was $88,000. Although Mr. Duke held only one qualifying share in the corporation, he prospered with the hotel in 1943. He had been employed on the basis of a fixed salary of $4,500 plus a percentage of the profits. His compensation from the position for 1943 was in excess of $21,000.

In June 1943, a proposal was placed before a meeting of the stockholders of the corporation for the lease of the physical plant by the corporation to a partnership to be composed of Mr. Duke and plaintiff, the hotel business to be operated by the partnership. The proposal was rejected. Toward the end of 1943, or early in 1944, while the outlook for the business of King Cotton continued favorable, Mr. Duke, with the assistance of Mr. Julian Price, borrowed money with which to purchase the 47 shares of the voting stock mentioned above. The security which Mr. Duke gave for the loan absorbed all of his available credit. The stock purchase was consummated before February 1, 1944. After the purchase by Mr. Duke, he held 47 shares of the voting stock in the corporation, while plaintiff continued to hold 51 shares. The remaining shares were held by other individuals.

Mr. Duke discussed with the corporation’s tax consultant the feasibility of transferring the operations of the hotel to a partnership. Thereafter Mr. Duke’s partnership proposal was discussed by Mr. Duke, Mr. Julian Price, plaintiff, and his wife. On February 1, 1944, an agreement was signed by Mr. Duke, Mrs. Price, and Mr. Colvert, forming a partnership under the firm name of King Cotton Hotel. On the same day, Cotton States Hotel Company leased the hotel building to the partnership for a term of 20 years at a rental of $5,000 per month. All of the hotel’s furnishings, fixtures, equipment, and inventories were included in the lease, and the lessees agreed to make and pay for all repairs and replacements necessary to maintain the building, equipment, and furnishings “in substantially their present condition,” reasonable wear and tear and loss by fire or other casualty excepted. The lessor undertook the fire insurance, while the lessees agreed to obtain and pay for public liability insurance in such amounts as the lessor should from time to time determine. The lease contained the following clause:

It is understood and agreed that inasmuch as the Lessees are not required to post a good and sufficient bond guaranteeing full performance on the part of said Lessees, the Lessor, at its option, may, with or without cause, and in its absolute discretion, terminate this lease at any time upon giving sixty (60) days’ written notice to the Lessees.

The partnership agreement, which is set forth in full in finding 10, is of the usual general partnership type. It stated, inter alia, that the operating capital of the partnership that had been contributed by partners was $1,425 by Haywood Duke, $1,425 by Martha Garner Price, and $150 by Harold Colvert. It also provided that the duties and salaries of the partners could at any time be changed by unanimous consent, and that all matters of importance should be approved by all the partners. It provided that Haywood Duke should give the business his entire time and attention as general manager of the business and was to receive the monthly salary of $500. It provided that Harold Colvert should give the business his entire time and attention as assistant manager and should receive a monthly salary of $250. It also provided that the profits and losses of the partnership should be shared 47% percent by Haywood Duke, 47% percent by Martha Garner Price, and 5 percent by Harold Colvert.

Each of the partners paid into the partnership fund the sum listed in the agreement, and operation of the hotel by the partnership was begun on February 1, 1944. The operation continued, under the terms of the partnership agreement and under the lease from the corporate owner, until June 1, 1949.

Mr. Duke was intent upon gaining and holding recognition of the King Cotton as the leading hotel in Greensboro. Mrs. Price supported Mr. Duke in this endeavor, before as well as after the formation of the partnership. After the partnership agreement her activities in this respect were more sustained and direct. Her judgment and tastes were then consulted and reflected in the selection of furnishings and interior decorations. She brought the hotel’s facilities to the attention of various local groups and organizations interested in such facilities for meetings, luncheons, cocktail parties, and dances.

Mr, Duke was primarily responsible for all decisions of a strictly business nature. His partners, Mrs. Price and Mr. Colvert, had complete confidence in his judgment on such matters, and left to him all decisions, except those concerning major expenditures. The partners jointly conferred and decided on such items as a contract of elevators, amounting to approximately $50,000, a boiler installation at a cost of approximately $30,000, and substantial purchases, actual and proposed, of furniture. While the partners did not meet regularly or on any fixed schedule, they did assemble once or twice a month, and the provision in their agreement that “all matters of importance shall be approved by all of the partners” was fully observed.

The partnership prospered and Mrs. Price received as her share of the net income $60,055.42 for 1945; $77,532.44 for 1946, and $79,676.36 for 1947.

Prior to the formation of the partnership Mrs. Price received $500 a month allowance from plaintiff, which she spent for household expenses. The balance of the household expenses were paid by plaintiff. Subsequent to the formation of the partnership the allowance was discontinued and Mrs. Price spent considerable sums for household expenses, including direct obligations of plaintiff. She invested some of her earnings and disbursed some to plaintiff. During this period plaintiff reported as net income and paid taxes on $135,456.54 for 1945; $60,989.70 for 1946, and $108,302.72 for 1947.

Mr. Julian Price died in 1946 and plaintiff and his sister inherited, inter alia, his home valued at $75,000. Plaintiff purchased his sister’s undivided one-half interest for $37,500 and on January 2, 1947, conveyed it to himself and his wife as tenants by the entireties.

In December 1948 an internal revenue agent began an audit of plaintiff’s income tax returns for the years 1945, 1946, and 1947. The same agent examined the returns made by the King Cotton Hotel partnership for its fiscal years ending January 31,1945, 1946, and 1947, and then examined Mrs. Price’s returns for the calendar years 1945, 1946, and 1947. On January 6, 1949, the agent orally informed plaintiff of his intention to recommend that plaintiff be taxed with the partnership income reported by Mrs. Price because of the use of this income for family and other expenses normally paid by the husband.

After the above discussion, Mrs. Price examined her check stubs and listed certain payments as shown thereon during the period extending from March 1, 1944, through January 31,1949. This list was given her accountant and he wrote a letter to plaintiff’s attorney which pointed out that Mrs. Price had paid certain expenses for plaintiff and had loaned him certain sums. It also stated that Mrs. Price had acquired a one-half interest in the home of Mr. Julian Price at a price of $37,500. It concluded with the suggestion that a note, bearing interest, should be given for the net amount, $76,539.24. A note was given for $76,539.24, bearing interest at the rate of 4% percent per annum, on February 14, 1949. This note was subsequently paid with interest.

Negotiations were completed during May 1949 for the transfer of the King Cotton Hotel to the Alsonett hotel dhn.in- Alsonett made offers to the members of the partnership and to the stockholders of Cotton States Hotel Company. The written offer to Mrs. Price of $100,000 for her interest in the partnership, which she accepted, was dated May 17, 1949. On May 9, 1949, at the instance of Alsonett, the lease from Cotton States Hotel Company to the partnership was amended to eliminate the termination clause, increase the rent, and reduce the term. The sale was consummated on or about June 1, 1949. After the sale, Mr. Duke remained with the King Cotton Hotel as manager. The partnership was formally dissolved on July 16, 1952.

The Commissioner assessed deficiencies against plaintiff in the total sum of $175,098.60, with interest of $24,307.33, based upon taxing to plaintiff the partnership income reported by Mrs. Price. The plaintiff paid these sums, filed claims for refund which were rejected, and timely instituted this suit. The Commissioner refunded to Mrs. Price taxes and interest for these years in the total amount of $141,812.03.

The plaintiff contends that the facts show that Mrs. Price was the member of the valid partnership and that plaintiff was not and never intended to be a member of the partnership. The defendant contends that the whole transaction was a tax sham and should be ignored for tax purposes.

The defendant bases a large part of its argument on the thought that this whole transaction was done for the purpose of avoiding or minimizing taxes. This argument is without significance because it is well settled that taxpayers have the legal right to decrease the amount of what otherwise would be their taxes, or altogether avoid them, by means which the law permits. The taxpayer is not required to carry out its transactions in a way that will produce the most tax for the Government. United States v. Isham, 17 Wall. 496, 506; Gregory v. Helvering, 293 U. S. 465, 469; Commissioner v. Tower, 327 U. S. 280; Chamberlin v. Commissioner, 207 F. 2d 462, 468; Zenz v. Quinlivan, 213 F. 2d 914, 916; The Coca-Cola Company v. United States, 97 C. Cls. 241, 261.

It is, of course, true that transactions between or involving members of a family are subject to close scrutiny. This means that such transactions must be fair and reasonable judged by the standard of transactions entered into by parties dealing at arm’s length, and must be based upon substance as opposed to mere form. See the cases cited in Ingle Coal Corporation v. United States, 131 C. Cls. 121, cert. denied 350 U. S. 842.

The change of operation of a hotel from a corporation to a partnership would ordinarily be considered more than a mere formality because the partners become subject to personal liability and all the other attributes of a partnership. Also the evidence in this case fails to show that the rent charged the partnership was unfair or unreasonable. However, the lease in this case contained a termination clause that gave the corporation and plaintiff complete control over the hotel. The termination clause expressly gave the corporation the absolute discretion to terminate the lease without cause upon the giving of 60 days’ notice.

The plaintiff owned 51 percent of the voting stock of the corporation and therefore controlled the corporation. Through his control of the corporation, plaintiff, because of this termination clause, had complete economic control over the hotel, the income producing property. Before the hotel was leased to the partnership plaintiff’s undistributed share in the profits from the hotel, after the payment of preferred dividends, was 51 percent and Mr. Duke’s was 47 percent. After the hotel was leased, Mrs. Price received 47% percent of the profits of the hotel. Thus Mr. Duke’s position remained substantially unchanged and plaintiff retained control over the property and Mrs. Price received substantially the same income that plaintiff would have received had he been the partner.

We believe that the Commissioner properly taxed the income received by Mrs. Price under such circumstances to plaintiff because of this termination clause on the ground that the transaction insofar as plaintiff was concerned lacked substance and was a tax sham. See Ingle Coal Corporation v. United States, supra, and the cases cited therein. The taxes are also sustainable on the ground that plaintiff an-ticipatorily assigned his right to a portion of the income from the hotel. Helvering v. Horst, 311 U. S. 112; Helvering v. Eubank, 311 U. S. 122; Harrison v. Schaffner, 312 U. S. 579; Commissioner v. Sunnen, 333 U. S. 591.

The plaintiff’s petition and the third party complaint are dismissed.

It is so ordered.

Madden, Judge, and Jones, Chief Judge, concur.

WhitakeR, Judge, and Littleton, Judge, dissent.

findings of fact

The court, having considered the evidence, the report of Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff and the third party defendant are husband and wife. Their home is, and since their marriage in 1937 has been, in Greensboro, North Carolina. They have three children, whose ages in 1955 (at the time of the trial of this action) were 16, 13, and ll. Plaintiff’s age at that time was 53.

2. Plaintiff and his sister (also a resident of Greensboro) were the only children and only heirs of the late Julian Price, who died in October 1946, leaving an estate worth between three and four million dollars. Mr. Julian Price was president of the Jefferson Standard Life Insurance Company (hereinafter sometimes referred to as Jefferson Standard) from 1919 until January 1946, when he became chairman of the board and plaintiff became president. Plaintiff had been executive vice president for some time theretofore. By 1946 Mr. Julian Price held a larger block of stock in Jefferson Standard than any other individual, and several thousand additional shares were held by members of his family. Plaintiff’s holdings at that time comprised some 50,000 or 60,000 shares.

3. Jefferson Standard retained the services of accountants and attorneys for consultation and advice in tax matters. From time to time the Prices, father and son, consulted the same accountants and attorneys in matters pertaining to tax liabilities, actual or potential, in their individual business and personal affairs.

During the last ten years of his life Mr. Julian Price was particularly concerned with tax matters. Pie had amassed a sizable fortune, he was in receipt of a large income, and he was past middle age. The accountant who was his tax adviser was continually urging him to transfer holdings to his wife and children and grandchildren. Similar advice was given to plaintiff by the same tax adviser. Both plaintiff and his father acted on the advice to some extent, making some transfers and gifts each year. As a consequence both men were aware and had some knowledge of the requirements of gift and estate taxes, while their business activities kept them aware of income tax requirements, both corporate and personal.

4. At the time of her marriage to plaintiff (in 1937) Mrs. Price had no substantial wealth of her own. Six years later (in 1943) her gross income was just over $4,350, practically all of which was dividend income from stock given to her by her husband or her father-in-law, most of the shares being Jefferson Standard.

5. Sometime during the 1930’s there came within the orbit of Price property holdings a North Carolina corporation named the Cotton States Hotel Company, which owned the physical plant and operated the business of the King Cotton Hotel in Greensboro. During the early months of 1937 (before plaintiff’s marriage) the corporation, acting upon the recommendation of Mr. Julian Price and plaintiff, employed as manager of the hotel Mr. Haywood Duke, a young hotel executive whose work in another North Carolina town had made a favorable impression upon the Prices.

Mr. Duke became manager of the hotel in May 1937. The assistant manager, employed at the same time, was Mr. Harold Colvert, who had theretofore served the King Cotton in other capacities.

After plaintiff’s marriage (in October 1937) he and Mrs. Price lived for some time at the King Cotton.

6. (a) During World War II installations of the armed services were located in or near Greensboro. The camps gave a fillip to the local hotel business. The year 1943 was the most profitable year, up to that time, in the history of the Cotton States Hotel Company. Its gross profits for that year were, in round numbers, $179,000, while its net income (after substantial absorptions of depreciation) was $88,000.

(b) At that time plaintiff owned 51 of the 100 shares of the voting (common) stock of the corporation. Forty-seven shares were owned by another family (husband and wife). The corporation also had outstanding $125,000 in preferred (non-voting) stock.

(c) Although Mr. Duke held only one (qualifying) share in the corporation, he prospered with the hotel in 1943. He had been employed on the basis of a fixed salary of $4,500, plus a percentage of the profits. His compensation from the position for the year 1943 was in excess of $21,000.

(d) In June 1943, a proposal was placed before a meeting of the stockholders of the corporation for the lease of the physical plant by the corporation to a-partnership to be composed of Mr. Duke and plaintiff, the hotel business to be operated by the partnership. The proposal was rejected a few days later at another meeting of the stockholders.

7. Toward the end of 1943, or early in 1944, while the outlook for business at the King Cotton continued favorable, Mr. Duke, with the assistance of Mr. Julian Price, borrowed money with which to purchase the 47 shares of common (voting) stock hereinabove mentioned. The security which Mr. Duke gave for the loan absorbed all of his available credit.

The stock purchase was consummated before February 1, 1944. After the purchase by Mr. Duke, he held 47 shares in the corporation, while plaintiff continued to hold 51 shares. The two remaining shares were held by other individuals.

8. Sometime after his stock purchase and before February 1, 1944, Mr. Duke sought the opinion of the corporation’s auditor (who was also tax consultant for the corporation and for Mr. Duke personally) as to the feasibility of transferring the operation of the hotel business from the corporation to a partnership composed of the stockholders, in order to eliminate the payment of excess profits taxes by the corporation. The consultant advised Mr. Duke that if the persons comprising the partnership owned respectively the same interest in it as they did in the corporation, there was likelihood that Internal Revenue would look through the arrangement and tax the corporation for the partnership income. The consultant advised Mr. Duke that the device would be more likely to succeed if one member of the partnership was not a stockholder in the corporation.

Thereafter, Mr. Duke’s partnership proposal was discussed at a conference in which he participated with plaintiff, Mr. Julian Price, and an attorney. Mrs. Price was not present at the meeting, but the proposal was later discussed with her by plaintiff, Mr. Julian Price, and Mr. Duke.

9. (a) On February 1, 1944, an agreement was signed by Mr. Duke, Mrs. Price, and Mr. Colvert, forming a partnership under the firm name of King Cotton Hotel.

Mr. Julian Price was present when the agreement was signed. Plaintiff was not.

(b) On February 1, 1944, Cotton States Hotel Company leased the hotel building to the partnership King Cotton Hotel for a term of 20 years at a rental of $5,000 per month. All of the hotel’s furnishings, fixtures, equipment, and inventories were included in the lease, and the lessees agreed to make and pay for all repairs and replacements necessary to maintain the building, equipment, and furnishings “in substantially their present condition,” reasonable wear and tear and loss by fire or other casualty excepted. The lessor undertook the fire insurance, while the lessees agreed to obtain and pay for public liability insurance in such amounts as the lessor should from time to time determine.

(c) The lease contained the following clause:

It is understood and agreed that inasmuch as the Lessees are not required to post a good and sufficient bond guaranteeing full performance on the part of said Lessees, the Lessor, at its option, may, with or without cause, and in its absolute discretion, terminate this lease at any time upon giving sixty (60) days’ written notice to the Lessees.

10. The text of the partnership agreement described in the preceding finding was as follows:

That said parties do hereby contract and agree to form a partnership for the purpose and upon the terms and conditions herein set out.
1. The firm name of this partnership shall be “King Cotton Hotel” and all business of any kind whatsoever shall be done under said name.
2. This partnership is formed for the purpose of engaging in the business of leasing and operating the King Cotton Hotel at Greensboro, North Carolina.
3. The office and principal place of business of this partnership shall be in the City of Greensboro, County of Guilford, State of North Carolina.
4. This partnership shall begin as of the first day of February, 1944, and shall exist and continue until one of the partners has given to the others written notice of his or her intention to dissolve this partnership, or until the death of a partner.
5. The operating capital of this partnership shall be Three Thousand Dollars ($3,000.00) which has been contributed by the partners as follows:
Haywood Duke-$1,425.00
Martha Garner Price_ 1,425. 00
Harold Colvert_ 150.00
6. The duties and salaries of the partners may at any time be changed by unanimous consent, and all matters of importance shall be approved by all the partners, but until changed, the duties and salaries shall be as follows:
“Haywood Duke shall give to the business his entire time and attention as General Manager of the business and for his services shall receive a monthly salary of Five Hundred Dollars ($500.00)
“Harold Colvert shall give to the business his entire time and attention as Assistant Manager or Resident Manager and for his services shall receive a monthly salary of Two Hundred & Fifty Dollars ($250.00)
7. Neither partner shall, without the knowledge and consent of the other partners, sign in the name of the partnership any note, draft, or other written obligation for the payment of money, except checks in payment of the ordinary and usual expenses incident to the operation of the hotel. Neither partner shall, without the knowledge and consent of the other partners, make purchases upon open account in the name of the partnership except for such goods, wares and merchandise as may be necessary to carry on the routine business of the partnership.
8. The fiscal year of the partnership shall be from February 1st to January 31st, inclusive.
9. All profits made by the partnership shall be divided among the several partners as follows:
To Haywood Duke_47% per cent
To Martha Garner Price_47% per cent
To Harold Golvert_ 6 per cent
All losses, if the business should show a net loss, shall be borne by the several partners in the same proportions that profits would have been divided, under this contract, if the business had shown a profit.

11. Each of the partners paid into the partnership fund the sum listed in the agreement, and operation of the hotel by the partnership was begun on February 1, 1944. The operation was continued, under the terms of the partnership agreement and under the lease from the corporate owner, until June 1, 1949.

12. From the time of his employment as manager, in May 1937, Mr. Duke was intent upon gaining and holding recognition of the King Cotton as the leading hotel in Greensboro. Mrs. Price supported Mr. Duke in this endeavor, before as well as after the formation of the partnership. After the partnership agreement her activities in this respect were more sustained and direct. Her judgment and tastes were then consulted and reflected in the selection of furnishings and interior decorations. She persuaded the manager and his assistant to initiate and maintain the custom of keeping fresh, cut flowers in the lobby and dining room. She brought the hotel’s facilities to the attention of various local groups and organizations interested in such facilities for meetings, luncheons, cocktail parties, and dances. Among the organizations was the local chapter of the Junior League.

Mr. Duke was primarily responsible for all decisions of a strictly business nature. His partners, Mrs. Price and Mr. Colvert, had complete confidence in his judgment on such matters, and left to him all decisions except those concerning major expenditures. The partners jointly conferred and decided on such items as a contract for elevators, amounting to approximately $50,000, a boiler installation at a cost of approximately $30,000, and substantial purchases (actual and proposed) of furniture.

While the partners did not meet regularly or on any fixed schedule, they did assemble once or twice a month, and the provision in their agreement that “all matters of importance shall be approved by all of the partners” was fully observed.

13. The partnership operation prospered. The Federal information returns filed on its behalf for its fiscal years ending January 31 of 1945,1946, and 1947, reported total net income and partners’ shares as follows:

14. (a) Prior to February 1, 1944, Mrs. Price received from plaintiff a monthly allowance of $500, which she usually deposited at a local bank in the only checking account then (or later) maintained by her. Under this arrangement Mrs. Price paid some of the household expenses, using “allowance” money for the purpose, and the remainder of household and family expenses were paid by plaintiff.

(b) After February 1, 1944, the allowance was discontinued. Mrs. Price received from the King Cotton Plotel $500 per month from February through August and $1,000 per month from September through December, making a total of $7,500 from this source during 1944. During the ten months of March through December 1944, she disbursed from her checking account a little more than $10,000, more than half of which was for household expenses. During this period plaintiff continued paying part of the household and family expenses.

(c) Mrs. Price’s income during 1945 was (as shown by her income tax return) derived from dividends, capital gains, and returns from the partnership. Her disbursements amounted to $72,000, approximately, divided as follows: $24,000 for investments; $23,500 for income tax; $12,000 for household expenses; $4,200 withdrawn in cash (part of which was used for household and family expenses); $2,000 for insurance premiums; $2,000 in contributions; and $4,300 for miscellaneous expenditures.

(d) Mrs. Price’s income during 1946 and 1947 was derived from the same or similar sources as in 1945. Her disbursements for those years followed the same pattern as the disbursements in 1945, except that (1) in 1946, instead of investments, she disbursed $33,000 to plaintiff and deposited $8,000 in the children’s savings accounts, from total disbursements of $72,000, and (2) in 1947, from total disbursements of $92,000, she made no investments but paid $50,000 on her income taxes and spent more than $30,000 for household expenses.

15.The individual incomes received by plaintiff and Mrs. Price during the calendar years 1945, 1946, and 1947, as shown by their individual (Federal) income tax returns, were as follows:

Each of them paid the taxes reported on their returns as due on the incomes above listed.

16. When Mr. Julian Price died (in October 1946), plaintiff and his sister, as the only heirs, inherited their father’s home, which was valued at $75,000. Plaintiff purchased from his sister, for $37,500, her undivided óne-half interest in the residence. On January 2, 1947, by means of a straw party conveyance, the home was conveyed to plaintiff and Mrs. Price as tenants by the entireties.

17. In December 1948 an internal revenue agent began an audit of plaintiff’s income tax returns for the years 1945, 1946, and 1947. The same agent at the same time examined the returns made by the King Cotton Hotel partnership for its fiscal years ending January 31, 1945, 1946, and 1947, and then examined Mrs. Price’s returns for the calendar years 1945,1946, and 1947.

The revenue agent spoke to plaintiff about the audit and was referred by him to the Jefferson Standard accountant who then served as tax adviser to plaintiff and Mrs. Price. The tax adviser obtained and made available to the revenue agent the bank statements and canceled checks of Mrs. Price. The agent examined them in the accountant’s office. Some of the checks of larger amounts were discussed by the two men, and the agent noted some of them on a list he was making.

On January 6, 1949, the agent orally informed plaintiff of his intention to recommend that plaintiff be taxed with the partnership income (from King Cotton Hotel) reported by Mrs. Price because of the use of this income for family and other expenses normally paid by the husband. Two weeks later, on January 20, 1949, the agent filed his report which formally recommended as stated above.

18. After the conference described in the preceding finding, plaintiff and Mrs. Price examined her check stubs and listed certain payments as shown thereon during the period extending from March 1, 1944, through January 31, 1949. Plaintiff gave this list to the accountant, who then wrote to the attorney as follows:

From March 1, 1944, until January 31, 1949, Mrs. Martha Garner Price paid household expenses, amounting to $82,115.93. These household expenses should have been paid by Mr. Balph C. Price. Attached is the original statement; also a photostat of it, showing individual items expended.
Mrs. Martha Garner Price made the following loans to Mr. Balph C. Price:
February 24, 1945_ $700.00
January 14, 1946_ 30, 000.00
March 14, 1946_ 3, 000.00
33, 700.00
Mr. Price partly repaid these loans as follows:
June 7, 1948_$4,000.00
July 1, 1948_ 3,000.00
7,000.00
leaving a balance of $26,700.00 due Mrs. Martha Gamer Price.
On January 2, 1947, Mrs. Martha Garner Price acquired from Balph C. Price a one-half interest in the home of Mr. Julian Price, deceased, at a price of $37,500.00.
Because of the foregoing transactions, Mr. Balph C. Price is now indebted to Mrs. Martha Garner Price in the amount of $71,315.93, plus interest at 6% from the date of the transactions to date. The amount of interest to February 8,1949, is $5,223.31.
It is suggested that he give her a note, dated today, secured by proper collateral, for $76,539.24, which is the amount of the principal plus the interest accrued to date. The note should bear 6% interest. Attached to this note should be a copy of this letter, which is enclosed, and a photostat of the individual items expended by Mrs. Price for Mr. Price.
The original statement should be retained in her permanent files.

19. On February 14,1949, plaintiff gave to Mrs. Price his note payable on demand for $76,539.24, bearing interest at the rate of 4% percent.

20. On May 9,1949, in so-called 30-day letters, the Internal Bevenue Agent in Charge transmitted to plaintiff, to Mrs. Price, and to the King Cotton Hotel partnership copies of the reports made by the revenue agent on January 20, 1949. These letters and reports proposed the assessment of deficiencies against plaintiff and the scheduling of refunds to Mrs. Price, based upon taxing to plaintiff rather than to Mrs. Price the income from the King Cotton Hotel partnership that had been reported for tax by her for the years 1945, 1946, and 1947.

21. (a) Following are excerpts from the revenue agent’s report relating to the partnership:

* * * The principal and only change herein is in the distribution of partnership income which is based on the determination that Mr. Balph C. Price is a partner rather than his wife, Mrs. Martha Garner Price.
‡ ‡
The validity of Mr. Duke and Mr. Colvert as partners is not questioned. Mr. Duke owns 47% of the common stock of the lessor corporation, and is General Manager of the King Cotton Hotel for which he receives 47%% of the profits. Mr. Colvert devotes full time to the hotel as assistant or Besident Manager for which he receives 5% of the profits. Each of the aforementioned partners receive a monthly salary in addition to their share of profits.
Inasmuch as the control of the lease, which is vested in Mr. Ealph C. Price, controlling stockholder of the lessor corporation, is the sole income producing factor to the partnership, it is held herein that Mr. Price rather than his wife, Mrs. Martha Garner Price, is a partner.
*****

No change was suggested by the report in partnership net income for any of the years covered.

(b) With respect to plaintiff, the revenue agent’s report listed deficiencies for the years 1945, 1946, and 1947 in the amounts hereinafter shown and stated:

* * * The principal cause of the additional tax is the findings set forth in EAE ion King Cotton Hotel in which it is determined that the taxpayer is a partner in the King Cotton Hotel. * * *

(c) With respect to Mrs. Price, the revenue agent’s report listed overassessments for the years 1945, 1946, and 1947 in the amounts hereinafter shown and stated:

*_* * The principal cause of the overassessment is the disallowance of the taxpayer in the King Cotton Hotel. * * •

22. During May 1949, negotiations were completed for the transfer of the King Cotton Hotel (physical plant and hotel business) to the Alsonett hotel chain. Alsonett made offers to the members of the partnership and to the stockholders of Cotton States Hotel Company. The written offer to Mrs. Price of $100,000 for her interest in the partnership, which she accepted, was dated May 17, 1949. On May 9, 1949, at the instance of Alsonett and as part of the negotiations, the lease from Cotton States Hotel Company to the partnership was amended to eliminate the termination clause, increase the rent, and reduce the term. The sale was consummated on or about June 1,1949.

After the sale to Alsonett, Mr. Duke remained with, the King Cotton Hotel as manager.

Neither plaintiff nor Mrs. Price has since owned any interest in or been otherwise engaged in the hotel business.

The King Cotton Hotel partnership was formally dissolved on July 15,1952.

23. On September 30,1949, plaintiff gave to Mrs. Price his check in the sum of $78,758.88, and the note described in finding 19 was marked paid.

24. (a) On July 26,1949, in a so-called 90-day letter, the Commissioner of Internal Revenue gave to plaintiff final notice of the determination of deficiencies in payments of income tax for the years 1945,1946, and 1947.

(b) On September 30,1949, the Commissioner of Internal Revenue timely assessed against plaintiff the following deficiencies in tax and interest thereon to August 15, 1949:

These deficiencies were based upon taxing to plaintiff the income reported by Mrs. Price as received from the partnership King Cotton Hotel.

(c) The assessments were paid by plaintiff in the following manner:

(1) Plaintiff’s check for $175,098.60 was mailed to the Collector of Internal Revenue on August 12,1949. This sum was deposited by the Collector on or about August 15,1949, in a suspense account and on October 6, 1949, was credited on the books of the Collector to the account of plaintiff as payment of the deficiency assessment.

(2) On October 18, 1949, plaintiff paid to the Collector the sum of $24.307.33, covering the assessed interest.

25.On November 18, 1949, the Commissioner of Internal Revenue refunded to Mrs. Price the amounts of tax and of interest thereon for the taxable periods set forth below:

26. (a) On July 27,1951, plaintiff filed claims for refund of the amounts that had been paid by him as deficiency assessments for the years 1945, 1946, and 1947.

(b) On May 16, 1952, pursuant to the provisions of section 3772 (a) (2) of the Internal Revenue Code of 1939, the Commissioner of Internal Revenue notified plaintiff by registered mail of the disallowance of these claims for refund.

27. (a) The petition in this case was filed on November 2, 1953.

(b) The third party complaint herein was filed on August 19, 1955.

28. (a) Mr. Duke was the moving spirit in the formation of a partnership to operate the King Cotton Hotel under a lease from its corporate owner. His primary objective, when the partnership was formed, was to eliminate the excess profits taxes for which it appeared the corporation might be liable.

(b) Interest in the partnership plan on the part of plaintiff and his father, Mr. Julian Price, was enlisted by Mr. Duke. All had the same interest in the elimination of excess profits taxes.

(c) On the basis of the tax consultant’s advice that the corporation would probably be taxed for the partnership income if the partnership was composed of stockholders in the corporation and if the partners’ shares were similar to their stock holdings, the problem was to introduce non-stockholders into the partnership, and to do so without diminishing the Prices’ ultimate, relative share of the profits. The selection of Mrs. Price was made for this purpose. Mr. Duke, plaintiff, and Mr. Julian Price agreed upon her selection, and Mrs. Price acquiesced in the plan.

(d) Plaintiff and his father were likewise aware at the time of possible further tax advantages for the Price family in the arrangement, in terms of income or gift taxes or both and in terms of their plans and objectives in respect to potential estate taxes.

(e) Mr. Duke, plaintiff, and Mr. Julian Price further agreed upon the selection of Mr. Col vert as the third partner. His selection served two purposes. One was the element of incentive to him, through a share in the profits. The other was to give the partnership a composition in which two members of the three were non-holders of stock in the owning corporation.

29. (a) Almost immediately after the partnership began operating the hotel, monthly payments were made by it to Mrs. Price in amounts identical (during the first eight months) with (1) the salary payable to Mr. Duke and (2) the allowance she had theretofore received from plaintiff. Mrs. Price used this income, which she received in 1944, in much the same manner as she had previously used the allowance. There is nothing in the evidence to suggest that this arrangement for and disposition of income was the result of a plan that was conceived or formulated by plaintiff and his wife or either of them prior to the formation of the partnership.

(b) The uses made by Mrs. Price of her income from the partnership and other sources during the calendar years 1945,1946, and 1947 are set forth in finding 14. The family purpose intended to be served by those uses, insofar as it was ever formulated or given expression as between the husband and wife, was to free his income for business uses. Neither of them was expressly conscious of the necessity for or the importance of an accounting between themselves until after the receipt of the letter from their tax adviser set forth in finding 18. That letter was part of the tax adviser’s continuing effort to get his clients’ records in the form deemed advisable by him for the purposes of potential estate taxes. Tbe preparation of the list described in finding 18 and the execution and payment of the note described in findings 19 and 28 were parts of the same pattern.

30. (a) The hotel operation was conducted by Mr. Duke, in whose judgment and ability the plaintiff, his father, Mrs. Price, and Mr. Colvert had implicit confidence. The determination to form a partnership was made as described in finding 28. Considering the favorable economic circumstances under which the partnership venture was launched and conducted, there was never any expectation or intention that any partner other than Mr. Duke would contribute substantially to the fundamental direction and management of the business venture.

(b) The plaintiff never intended to be a partner, and never participated in partnership affairs. He was interested, as described in finding 28, in setting up the venture as a means of providing income from the profits of the hotel operation for the family entity of himself and Mrs. Price. In this connection he acted to provide assurance through the termination clause in the lease against the possibility (however remote) of financial losses from the venture. Otherwise, he was content to leave the management in the hands of the partnership as constituted.

(c) The considerations described in finding 28, plus agreement upon the division of profits between the partners (which was discussed at the meeting of Mr. Duke, plaintiff, and others, as described in finding 8), comprised the major preliminaries to the formation of the partnership. The uses made and to be made of Mrs. Price’s income from the partnership were determined by consultation between plaintiff and Mrs. Price after the partnership was formed. Her use of such income in the payment of household and family expenses, thereby freeing his income for other uses, resulted from such consultations, and was not the result of a purpose consciously formed or expressed prior to the organization of the partnership.

CONCLUSION OK LAW

Upon tbe foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover. Accordingly, plaintiff’s petition and the third party complaint are dismissed. 
      
       For each of the calendar years with which this ease is concerned (1945,1946, and 1947), separate individual income tax returns were filed by each of the Price children as well as by each of the parents.
     
      
       WMle the evidence is silent as to the expenses of the corporation (except for an annual salary of $2,600 paid to plaintiff as its president) and as to any distributions by it to shareholders, there may be noted the potential of income to plaintiff and Mr. Duke.
     
      
       The reason for the insertion of this clause is not explained by the evidence. Inferentially, it appears to have been devised for protection of the Price interests, since Mrs. Price would have been more able at that time than either of the other two partners to respond financially in the event of partnership liabilities exceeding its income and limited capital.
     
      
       Cash receipts from the hotel business proved sufficient from the start of the operation to meet the partnership’s obligations.
     
      
       The shares listed for Mr. Duke and Mr. Colvert included their salaries.
     
      
       Mrs. Price’s income tax return for calendar year 1944 is not in evidence, nor is it in issue here. On her returns for 1945, 1946, and 1947, she reported as partnership income the shares listed after her name in finding 13 (except that in 1945 she listed $58,875.84 instead of $60,055.42),. Her 1944 income is material here only as the source from which her disbursements were made.
     
      
       Plaintiff used the $33,000 in the payment of his 1945 income tax.
     
      
       A substantial part of the latter sum was spent in redecorating the former home of Mr. Julian Price, into which plaintiff and his wife moved during 1947.
     
      
       No point has been made in this ease of the obvious fact that the partnership returns cover income received during 11 months of 1944 and cluring only one month of 1947.
     
      
       Finding 24 (b).
     
      
       Finding 24 (b).
     
      
       The third party complaint was filed pursuant to an understanding between counsel emanating from the preference expressed by counsel for plaintiff of handling the repayment of Mrs. Price’s refunds in this way, if plaintiff is entitled to recover, rather than by stipulation.
     
      
       It must be inferred that the proposal made to the stockholders in June 1943 (finding 6 (b)) was his project. At that time he owned no appreciable interest in the corporation. A partnership composed of himself and plaintiff would have given him the prospect of a larger share of the profits than his salary-plus-commission could provide.
     
      
       It is to be inferred from the evidence as a whole that Mrs. Price was a more active participant in partnership affairs than plaintiff would have been if he had undertaken it.
     