Opinion · United States Tax Court

Drew v. Commissioner

Drew v. Comm’r, 12 T.C. 5 (T.C. 1949)

Type: Opinion
Court: United States Tax Court
Jurisdiction: Federal
Date: 1949-01-10
Topic: finance

OPINION. Johnson, Judge: Under the view that no partnership between petitioner and his wife should be recognized for tax purposes, respondent determined petitioner taxable on all the profits from Drew’s Manstore in 1944 and 1945, but reduced such profits by $5,547.82 and $10,627.88, respectively, described as deductions “for salary to your wife and interest on her investment in the business.” The amounts of these deductions equal 30 per cent of profits computed without them. From this method of computation it is obvious that the deductions do hot represent determinations of reasonable compensation for services rendered and capital used, but merely a reallocation of business profits on a 10-30 per cent basis instead of the 50-50 per cent basis fixed by the parties’ instrument of January 23, 1943. Regardless of his recognition that the wife had invested capital in the business and had rendered valuable services to it, respondent now defends the determinations by the argument that the wife had not made any capital contribution and that her services are not shown by petitioner to have been vital or' substantial. He urges further that prior to 1943 petitioner and she had not purported to own the business jointly or to be partners, and he challenges the sufficiency of the instrument of January 23,1943, as a “foundation upon which to lay a claim of partnership.” We agree in principle that no partnership is recognizable in the absence of an intent to form one; cf.

Citator

UpLaw has not yet analyzed Drew v. Commissioner. The absence of a flag is not a finding that it is good law.

Cited by: 13 opinions

DREW v. COMMISSIONER OF INTERNAL REVENUE,12 T.C. 5(1949)

N. B. DREW, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket Nos. 16418, 16419.

United States Tax Court.

Promulgated January 10, 1949.

1. The taxpayer and his wife in 1918 began a dry cleaning business with small capital, to which each had contributed separatePage 6funds; in 1919 they began a clothing business financed by a joint loan and savings. The wife contributed vital services and shared in business management. In 1943 the taxpayer conveyed to her a half interest in the clothing business and its assets as tenant in common with him by an instrument which provided that they thereafter share equally in profits and losses. Before and after 1943 all funds were kept in bank accounts of the business, against which each could draw. Only half the profits of the business in 1944 and 1945;held,taxable to the husband, since a partnership, recognizable for tax purposes, existed between him and his wife.

2. As the taxpayer's four sons became mature, each was employed in the business, was paid a basic salary, and was given a bonus at the year's end. Three sons served in the armed forces during 1944 and 1945, but rendered some services while on leaves and after discharge. The eldest son, deferred because of dependents, continued to work for the clothing store, but also engaged in work for a lumber company during summer months.

(a) On the evidence,held,that compensation paid to the eldest son, consisting of basic salary and bonus, was reasonable in amount for the services rendered by him to the clothing business and is deductible in full.

(b) Equal bonus payments, representing a percentage of business profits, made to the three sons in the armed forces,held,not deductible because not representing the reasonable value of the sons' potential services and not paid as an inducement for the sons' return to the taxpayer's employ. I. T. 3417, 1940-2 C. B. 64, construed.

(c) Reasonable compensation for services actually rendered by the three sons in 1944 and 1945 determined on the evidence.

Wilson S. Wiley, Esq.,andRollin P. Rodolph, C. P. A.,for the petitioner.Robert G. Harless, Esq.,for the respondent.

The Commissioner determined deficiencies of $1,479.55 and $7,269.41 in petitioner's income taxes for 1944 and 1945, respectively, by adding to his income one-half the profits of a clothing business which his wife had reported on her return, and by disallowing the deduction of a part of amounts paid in 1945 as salaries to his four sons, three of whom were in the armed forces. By amended answer the Commissioner prays for increased deficiencies, alleging error in his failure to disallow deductions for the sons' salaries in 1944 and failure to disallow more of the amounts paid as salaries in 1945. Petitioner contends that a valid partnership existing between himself and wife should be recognized for tax purposes and that the amounts paid to the sons are deductible as reasonable compensation for services rendered by them or as an inducement for their return to his employ after the war.

FINDINGS OF FACT.

Petitioner, a resident of Klamath Falls, Oregon, filed his income tax returns for 1944 and 1945 with the collector of internal revenuePage 7for the district of Oregon. His wife, Edna Pearl Drew, filed separate returns. They also filed partnership returns for 1944 and 1945, reporting as income distributable half to each, the profits of a men's furnishing business, operated under the name of Drew's Manstore.

Petitioner and his wife were married at Mesa, Arizona, in 1914. Both were then residents of Arizona, a community property state, and at the time of their marriage each owned about $500. Petitioner was working for a lumber company, in which he then owned and still owns an eighth interest, and his wife was employed as stenographer by a law firm. She continued to work for about a year after marriage. Early in 1918 they settled at Klamath Falls, Oregon, and established a dry cleaning business with their joint savings of $2,500, to which each had made about equal contribution. On a trade name certificate filed with the proper county official petitioner and his wife declared themselves joint owners. In January 1919 they opened a store for the sale of workmen's clothing, financing it with $2,000 borrowed on a joint note which both signed. Otherwise, no outside capital has ever been used in petitioner's enterprises. Selling the dry cleaning establishment about 1929, petitioner and his wife have since operated the clothing business, which, under the trade name of Drew's Manstore, has grown from a shop of cheaper wares into one of the two largest men's furnishing stores in Klamath Falls. The volume of sales was $35,000 in 1937, and, after a change begun that year in the quality of merchandise handled, it steadily increased, reaching $214,000 in 1945 and $278,000 in 1946.

Petitioner's wife participated actively in the business ventures. She took charge of all silks and fancy articles and assisted with the bookkeeping and credits in the dry cleaning establishment. She participated in all phases of the operation of the clothing store, assuming responsibility of management during petitioner's absences. She rendered services regularly during business hours and often thereafter, having charge of the books, cash, banking, correspondence, and other office matters. She also assisted in selling and in buying stock, sometimes accompanying petitioner on his purchasing trips to San Francisco, Los Angeles, Portland, and Seattle, and he deferred to her judgment in the selection of gift items and articles sold to women. To free her from the full burden of home duties, petitioner employed a housekeeper for domestic work and to aid in the care of their four sons while young.

The sons likewise took part in the business, helping out during school age in such ways and at such times as they could. They were encouraged to prepare themselves to be merchants; all were interested in doing so; all took courses in business administration; and since maturity all have been employed at the store. The eldest son, Greer Drew, born in 1915, graduated as a B. A. in business administrationPage 8from the University of Oregon in 1936 and received an M. A. degree in 1937 from New York University, where he specialized in retailing. He obtained practical experience as a part of his course, and, after completing it, declined several offers of executive positions in New York department stores. Returning to Klamath Falls, he entered petitioner's employ in the summer of 1937. He has remained continuously employed since that time, engaging in all phases of the business, but primarily in the buying of stock. Obtaining good merchandise was difficult during the war years, and he spent about half his time on trips, seeking salesmen and manufacturers who would make or increase allotments of goods for the store. Petitioner and wife usually accompanied him on these trips, and because of his training and increased experience they came to rely more and more on his judgment. Greer also assisted with accounts, and on occasion took charge of the store. He was deferred from military service because of a dependent wife and 2 children. During the middle of 1944 and at his draft board's suggestion, Greer accepted employment from a lumber company at $275 a month for about 6 months, and in 1945 he spent some 5 months in performing a contract for delivery of logs to the company, deriving a profit of about $10,000 from the venture. This work was conducted at a distance of 42 miles from Klamath Falls, but it fell during the time of low activity in the clothing business. He kept in constant touch with the store throughout, and continued to do its buying.

Petitioner's second son, Frank Drew, born in 1916, entered the employ of Drew's Manstore after graduating from the University of Oregon in 1939. He first worked with his brother Greer in learning buying, and abetted Greer's efforts in inducing petitioner to handle more expensive merchandise and attract a different clientele. Frank was active socially, thereby aiding the store's business; he became a member of the junior chamber of commerce and president of a local club. He initiated and handled an advertising program for the business, worked with credits and accounts, and, when his parents and Greer were out of town, took charge of the store. In February 1942 he entered the Navy as an ensign, and during periods of training near Chicago and near Boston in 1944 he succeeded in buying for the store about $1,700 worth of merchandise. During a month's leave in November 1944 he worked in the store and made a purchasing trip to Portland, where he bought about $5,000 worth of goods. While stationed in London, England, he made contacts with manufacturers there from whom goods have been acquired since the war. Upon termination of his naval service in October 1945 he proceeded to San Francisco, where he procured about $15,000 worth of goods in addition to what the store's suppliers there had previously agreed to furnish.Page 9Returning to Klamath Falls about November 15, he resumed his work at the store before the Christmas rush season.

Feeling that the clothing store was too small a business for all four sons, and having led them all to expect participation, petitioner arranged during the war to purchase a sporting goods shop. On January 1, 1946, he distributed a one-tenth interest in this business to himself, his wife, and to each of his four sons and their wives as "tenants in common." Frank and his fourth son, Cecil, were made co-managers of this business, which they have since operated under the name of Drew's Gun Store for the sale of guns, ammunition, boots, saddles, and other sporting goods.

Petitioner's third son, Lloyd Drew, born in 1918, began regular work in Drew's Manstore in 1938. He left, however, in 1939 for a year's course at the University of Oregon. He returned thereafter and assisted in advertising, window-dressing, and selling until he joined the Army Air Force in February 1943. While in the service he also made contacts with clothing suppliers, procuring a small amount of merchandise, and he worked in the store during a leave period from June 14 to July 14, 1945. He returned to it upon discharge from the Army in October 1945, and at present he is comanager with Greer Drew.

Petitioner's fourth son, Cecil Drew, born in 1923, having worked in the store when possible during his high school years and thereafter, entered its regular employ upon completing a year at the University of Oregon in June 1943. A month later he was mustered into military service. He too did store work during short leave periods, and on being discharged in September 1945 he returned to work there until made comanager of Drew's Gun Store in January 1946.

In the conduct of Drew's Manstore petitioner has regularly consulted his wife about business decisions. She has exercised independent judgment in making purchases, and she was authorized to and did draw checks signed in her name against two bank accounts, both of which are kept in the joint names of petitioner and her. Petitioner and she had no other bank account, and their personal expenses were met by withdrawals from these. Real estate has always been held in their joint names. As the sons became of age, they too have been consulted about business decisions; have acted independently for the store and on occasion taken charge; and Greer has authority to draw checks against the bank accounts. Since the war petitioner and his wife have been much less active in the business than before, relying largely on Greer.

As the sons entered the regular employ of the store, petitioner paid to each a starting salary of from $30 to $40 a week and at the end of the year a bonus. The bonus was a percentage of profits, and was distributed equally among the four sons in a single payment. InPage 101943 it amounted to $7,000, or $1,750 each; in 1944 to $8,000, or $2,000 each, and in 1945 to $20,000, or $5,000 each. After the sons entered the armed forces petitioner continued to make bonus payments to them. For the years indicated each received altogether the following amounts:

Year Greer Drew Frank Drew Lloyd Drew Cecil Drew

1941 ........... $2,020.00 $1,900.00 $1,831.00 1942 ........... 3,713.00 1,900.00 1,903.00 1943 ........... 7,213.00 1,750.00 1,785.00 $1,885.00 1944 ........... 3,051.72 2,000.00 2,000.00 2,000.00 1945 ........... 6,512.50 5,206.25 5,756.25 5,737.50

On the advice of a lawyer and tax expert, petitioner and his wife on January 5, 1943, signed and acknowledged a declaration that they had associated themselves to conduct business under the assumed name of Drew's Manstore, and on January 23, 1943, they signed and acknowledged an instrument whereby petitioner did "give, grant, convey and deliver" to his wife for the recited consideration of love and affection and of her capital contribution to the business of Drew's Manstore "an undivided one-half interest" in all the stock, furnishings and fixtures of the store, including future "additions and replacements," such conveyance being intended "to create an undivided one-half interest in and to the business now being carried on by the undersigned and his said wife, * * *" and:

* * * it being understood that the grantor and the grantee shall share equally in all profits earned, and likewise shall share equally all losses sustained, if any; that this instrument shall be deemed to create a tenancy in common between the parties * * *,

each of whom should have the unrestricted right to sell and transfer all or parts of his interest to others. This form of conveyance was chosen on the attorney's advice that a tenancy in common would simplify probate proceedings. Tax consequences were also mentioned. On a gift tax return filed for 1943 petitioner reported a gift of "Merchandise Stock" valued at $16,071.63. For years preceding 1943 petitioner had reported all profits of Drew's Manstore as his income. For 1943, 1944, and 1945 he and his wife filed partnership income tax returns, reporting one-half of the profits as distributable to each. In computing partnership profits, petitioner deducted in 1944 salaries aggregating $19,731.35, inclusive of $9,051.72 paid to the four sons, and he deducted in 1945 salaries aggregating $37,216.70, inclusive of $23,212.50 paid to the four sons. So computed, the partnership's ordinary net income was $18,393.57 in 1944 and $28,070.81 in 1945.

Petitioner's wife contributed capital and rendered vital services to the business of Drew's Manstore in 1944 and 1945. The compensation paid to Greer Drew as salary in 1944 and 1945 was reasonable in amountPage 11for the services rendered. Reasonable compensation for the services actually rendered the business by Frank Drew was $250 in 1944 and $1,000 in 1945; by Lloyd Drew, $756.25 in 1945; by Cecil Drew, $737.50 in 1945. Payment of the $2,000 and $5,000 bonus to the three sons in the armed forces in 1944 and 1945, respectively, was not made primarily as an inducement for their return to petitioner's employ after the war.

The Commissioner determined that there was no bona fide partnership between petitioner and his wife in 1944 and 1945, but, recognizing the contribution of services and capital by her, he allowed deductions of $5,547.82 in 1944 and of $10,627.88 in 1945 "for salary to your wife and interest on her investment in the business." These deductions are 30 per cent of net profits unreduced by the amounts stated. In computing profits from Drew's Manstore, he allowed deduction of the salaries, aggregating $9,051.72, paid to the four sons in 1944, but disallowed as excessive $11,712.50 of the aggregate salaries of $23,212.50 paid to them in 1945, determining the following amounts to be reasonable and deductible:

Greer Drew ......................... $4,000 Frank Drew ......................... 2,500 Lloyd Drew ......................... 2,500 Cecil Drew ......................... 2,500

OPINION.

JOHNSON,Judge:

Under the view that no partnership between petitioner and his wife should be recognized for tax purposes, respondent determined petitioner taxable on all the profits from Drew's Manstore in 1944 and 1945, but reduced such profits by $5,547.82 and $10,627.88, respectively, described as deductions "for salary to your wife and interest on her investment in the business." The amounts of these deductions equal 30 per cent of profits computed without them. From this method of computation it is obvious that the deductions do not represent determinations of reasonable compensation for services rendered and capital used, but merely a reallocation of business profits on a 70-30 per cent basis instead of the 50-50 per cent basis fixed by the parties' instrument of January 23, 1943. Regardless of his recognition that the wife had invested capital in the business and had rendered valuable services to it, respondent now defends the determinations by the argument that the wife had not made any capital contribution and that her services are not shown by petitioner to have been vital or substantial. He urges further that prior to 1943 petitioner and she had not purported to own the business jointly or to be partners, and he challenges the sufficiency of the instrument of January 23, 1943, as a "foundation upon which to lay a claim of partnership."Page 12

We agree in principle that no partnership is recognizable in the absence of an intent to form one; cf.L. C. Olinger,10 T.C. 423, and cases therein cited. But as petitioner does not contend that a partnership existed prior to 1943 and as the years here involved are 1944 and 1945, we perceive no occasion for deciding the question suggested. The instrument of January 23, 1943, however, leaves no doubt about intent. Petitioner thereby purported to convey to his wife "an undivided one-half interest in and to the business," and it was specified that profits and losses should be shared equally. Thereafter, as before, business receipts were deposited in a joint bank account against which each could draw, and for 1943 and later years partnership income tax returns were filed. While the words "partner" and "partnership" are not used in the instrument, this omission lacks decisive significance, for, as said by the Supreme Court inCommissionerv.Tower,327 U.S. 280:

* * * A partnership is generally said to be created when persons join together their money, goods, labor, or skill for the purpose of carrying on a trade, profession or business and when there is community of interest in the profits and losses. * * * whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both * * * is a question of fact * * *.

For tax purposes, moreover, the meaning of "partnership" is expanded by section 3797 (2), Internal Revenue Code, to include "a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on."

The evidence indicates clearly that at the time of marriage in 1914 the wife had some separate funds; that she was gainfully employed after marriage; and that about half of the $2,500 invested in the dry cleaning business, with which petitioner began at Klamath Falls, originated with her. Respondent argues technically that this contribution is of no bearing on the issue, for the dry cleaning business was sold by 1930, and the clothing business, a distinct enterprise, was initially financed by a $2,000 loan. This loan, however, was procured on a note which both signed, and, as no outside capital has ever been used, it was presumably paid from business operating profits which were deposited in a joint bank account. For recognition that the wife made a capital contribution to the business, it is not necessary to find that the amount was large or that it can be traced through business transactions and changes over the years.Graberv.Commissioner(C.C.A., 10th Cir.),171 F.2d 32;Weizerv.Commissioner(C.C.A., 6th Cir.),165 F.2d 772;Wilsonv.Commissioner(C.C.A., 7th Cir.),161 F.2d 661. It is enough that the wife's contribution was a material factor in the establishment and operation of the enterprise. Drew's Manstore was developed fromPage 13small beginnings. It grew from the joint efforts of petitioner and his wife in the use of a joint loan and jointly held funds derived from operation of the dry cleaning business which had been launched less than a year before with the $2,500, of which the wife had contributed about half. Under such circumstances it is immaterial that the precise part of the clothing business and its earnings of later years attributable to the wife's capital is not susceptible of proof, for it is clear that about half of the capital ever used by petitioner originated with her. Such evidence warrants the conclusion that she did make a contribution, and we have so found.

The evidence is equally persuasive that she contributed vital services and participated in management. Respondent attempts to minimize the nature and extent of the services, alleging that the testimony about them is vague and that the "home training of a splendid family of four boys" would not have left her sufficient time for any substantial work at the store. However she managed it, we are convinced that she did a commendable job in both respects. Petitioner testified that she regularly had charge of "the office," banking, and correspondence; signed checks and paid bills; that he relied on her in the purchase of stocks for sale to female patrons; that she sometimes accompanied him on purchasing trips, and in his absences took complete charge of the store; that she worked during "business hours and after hours," and helped him "more and more as time went on." Greer Drew corroborated these statements, adding that on occasion she independently purchased merchandise and hired and fired employees.

Such services are vital and are of a managerial character. She rendered them not only during the taxable years, but had done so over many preceding years, and these prior services have a material bearing on the recognition of her status as a bona fide partner.Lawtonv.Commissioner(C.C.A., 6th Cir.),164 F.2d 380;Singletaryv.Commissioner(C.C.A., 5th Cir.),155 F.2d 207;Paul L. Kuzmick,11 T.C. 288;SamuelGoodman,6 T.C. 987;Leo V. Marks,6 T.C. 659. Petitioner's conveyance of the half interest in the business to her in 1943 as a gift, moreover, does not militate against such recognition, for, as said inGraberv.Commissioner, supra:

* * * The so-called gift, as reflected by the gift tax return, was not intended to afford capital for the purpose of buying an interest in the partnership as in other cases. It was for the avowed purpose of acknowledging the wife's interest * * *. * * * while it adds nothing to the vital question of partnership, it does not detract from the controlling realities.

As petitioner has established that his wife contributed capital, rendered vital services, and shared in the control of Drew's Manstore, the partnership between them, as manifested by the instrument of January 23, 1943, and their subsequent conduct of the business, should be recognized for tax purposes.Allenv.Knott(C.C.A., 5th Cir.),Page 14166 F.2d 798;Graberv.Commissioner, supra; Wilsonv.Commissioner, supra; Paul L. Kuzmick, supra. And net profits of the business, distributable half to each under the written agreement, should be taxed half to each.Canfieldv.Commissioner(C.C.A., 6th Cir.),168 F.2d 907;Woosleyv.Commissioner(C.C.A., 6th Cir.),168 F.2d 330;Reuben Stiefel,9 T.C. 576.

In recomputing the net profits of the business, the Commissioner allowed the deduction of all salaries paid in 1944, but disallowed as excessive $11,712.50 of the salaries paid in 1945 to the four sons. By amendments to his answers, he prays that all salaries paid to the sons be disallowed and that increased deficiencies be determined accordingly. On brief, however, he modifies the issue so raised to contend that only the bonus payments should be disallowed. The bonus was $8,000 in 1944, $2,000 being paid to each son, and $20,000 in 1945, $5,000 being paid to each son. So reduced, the sons' salaries, which he now concedes to be deductible, were $1,051.72 in 1944 and $3,212.50 in 1945, distributed as follows:

Year Greer Drew Frank Drew Lloyd Drew Cecil Drew

1944 ...... $1,051.72 1945 ...... 1,512.50 $206.25 $756.25 $737.50

Respondent argues that the equal distribution of a percentage of annual profits among four sons whose value to the business varied greatly was in effect a gift, not compensation for services, especially since the three sons who were in the armed forces during 1944 and most of 1945 rendered services only for short periods. We should be impressed by this argument if the basic salary paid to each son was large enough to support an inference that it alone was intended as compensation. But in fact the amounts paid them in excess of bonus were too trivial to be considered full compensation. The testimony concerning the rate or method of computation is somewhat confusing, and $30 to $40 a week has been found, although Greer on cross-examination mentioned $300 a month as his, but the totals of $1,051.72 and $1,512.50 received by him above bonus in 1944 and 1945, respectively, would seem to indicate regular payment of even less than indicated by the rate found. In any event, total payments to each are to be deemed deductible salary to the extent that they represent reasonable compensation for services rendered and are nondeductible to the extent that they exceed it. Regulations 111, sec. 29.23 (a) (7)-(8);In re Rae'sEstate(C.C.A., 3d Cir.),147 F.2d 204;SamuelRottenberg,20 B. T. A. 589.

Leaving for later discussion the effect of absences in the armed forces, and considering first the payments received by Greer Drew, who was not in military service, we find that Greer received $3,051.72Page 15in 1944 and $6,512.50 in 1945. Greer was a seasoned business man, fitted by extensive college training and seven years of practical experience as buyer and, on occasion, as manager of Drew's Manstore, which had an annual sales volume well in excess of $200,000 in the taxable years. There is credible testimony that the amounts paid him were less than the compensation currently paid to qualified men rendering like services. Respondent emphasizes his employment with a lumber company in 1944 and his work in performing a logging contract in 1945 as materially reducing his participation in the clothing business. But Greer testified that he kept constantly in touch with that business and that his other activity fell during the months of the year when the seasonal business of the store required least attention. He engaged in this outside work at the suggestion of his draft board. We have found that the amounts paid him were not excessive, and hold them deductible in full.

The issue in respect of payments to the other 3 sons is complicated by their absence in the armed forces. Frank entered the service in February 1942; he was then 25 years of age, and had been employed regularly in the store for about 3 1/2 years, or since his graduation from the University of Oregon. Lloyd entered the service in February 1943; he was then 24 years of age, and had been employed regularly about 3 years. Cecil entered the service in July 1943; he was then 20 years of age, and had been employed regularly only a month. All three assisted in store work during short leave periods, and all three resumed work in September or October 1945, returning in time for the most active season of the business. Frank and Lloyd also procured some merchandise and made business connections while in the service. In 1943 all the sons received a $1,750 bonus, and Lloyd and Cecil an additional $35 and $110, respectively, inferentially for services actually rendered. In 1944 all received a $2,000 bonus and no more; and in 1945 all received a $5,000 bonus and, in addition, Frank, who did not reach Klamath Falls until November 15, received $206.25, Lloyd received $756.25, and Cecil received $737.50. Lloyd has since remained with Drew's Manstore, but on January 1, 1946, Frank and Cecil left to manage the newly acquired gun store in which each of the five Drews and their wives had a tenth interest.

Admitting, as he must, that the three sons actually rendered little service in 1944 and 1945, petitioner relies on I. T. 3417, 1940-2, C. B. 64, in which the Commissioner, adhering to administrative practice followed after World War I, ruled:

* * * that salaries paid by employers to employees who were absent in the military or naval service * * *, but who intended to return at the conclusion of such service, were allowable deductions from gross income. (See article 108, Regulations 45 (1920 edition), promulgated under the Revenue Act of 1918.)Page 16

No provision of the code explicitly permits the deduction, but this Court has approved the ruling, saying inBerkshire OilCo.,9 T.C. 903, that the salaries:

* * * qualify as a business expense, because such payments are justified by past services and an employer's advantage in retaining the services of experienced personnel when released from service. * * *

But as the deduction is a corollary of section 23 (a) (1) (A), relating to ordinary and necessary business expenses, the salaries paid to those absent in the armed forces must meet the general tests for deduction under that section.Inter alia,they must be "reasonable," which we hold for present purposes to mean commensurate with the value of the employee's normal services to the business, and they must be paid as an inducement for the employee's return after discharge, for otherwise no business benefit would be contemplated. If the employee has a proprietary interest in the business or is a close relative of the employer, such relations would not preclude a deduction of the salary paid himin absentia,but they do invite a special scrutiny of the payor's motives, for a payment intended merely as a gift is obviously not a deductible expense.

An analysis of the payments made to the 3 younger sons refutes rather than supports the view that they represented merely a continuation of compensation or an inducement to return. The value of their respective services was obviously not the same. Frank, the oldest, was a university graduate who had over 3 years of practical experience; Cecil, the youngest, was only 20; he had attended the university for only one year and had been employed only one month; Lloyd's age and qualifications fell between the two. Yet all three received $2,000 in 1944 and over $5,000 in 1945, and in 1943 Cecil actually received more than the others, although he had not been employed until the middle of the year. When it is considered that Greer too received an equal part of the bonus, which was the major part of the payments in all years, we are forced to the conclusion that petitioner was acting as a father, refraining from parental discrimination, and not as an employer, nicely fixing compensation according to the recipient's commercial value to the firm. He was, of course, at liberty to treat his sons alike, and he may deduct as a proper expense the payments for which commensurate services were rendered. But no business motive can be imputed to his payments of such disparate amounts as $2,000 and $5,000 to sons who were rendering little or no services, especially since they had never received so much for regular work.

We can well believe that petitioner wished them to return to Klamath Falls, but not for commercial reasons of benefit to himself. He arranged during their absence to acquire a second store, and did so, giving each an interest in it. Frank and Cecil were made comanagers of this in January 1946, while Greer and Lloyd remained at the clothingPage 17store. Petitioner citesCulbertsonv.Commissioner(C.C.A., 5th Cir.),168 F.2d 979, as an authority supporting his contention, but a partnership between the taxpayer-father and his son, absent in the armed forces, was there involved. Petitioner's sons were not partners, and his gratuitous distribution of a percentage of profits equally among them can not be regarded as an inducement for their return, since he was already planning to give each a proprietary interest in another store, and he employed two of them in it in January 1946 because the clothing business was not large enough for all.

But this conclusion does not preclude petitioner's right to deduct a part of the amounts paid which represents the fair value of services actually performed. The evidence shows that during a month's leave in October 1944 Frank was active in aiding and making purchases for the store, and that he resumed work for it in October 1945. Lloyd worked a month in the summer of 1945 and permanently resumed work about the middle of September. Cecil resumed work about the first of October 1945. We have found that the fair value of Frank's services was $250 in 1944 and $1,000 in 1945; of Lloyd's services, $756.25 in 1945; and of Cecil's services, $737.50 in 1945. These amounts are properly deductible.Decisions will be entered under Rule 50.