Smith v. Commissioner

*778 This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the period from January 1 to November 11, 1927, in the amount of $13,232.56. The error alleged is that respondent added to taxable income the amount of $60,674.82 as decedent's share of the distributable income of the partnership.

FINDINGS OF FACT.

Richard H. Lynch was a special, or limited, partner in the brokerage firm of Merrill, Lynch & Company. He kept his accounts and*1249 filed his income-tax returns on the cash receipts and disbursements basis for the calendar year. The partnership kept its accounts on the accrual basis. Its taxable year was the calendar year.

The partnership was organized under the laws of the State of New York. The articles of agreement provided that upon the decease of either of two general partners the firm should be dissolved. The agreement also provided, among other things, that:

TENTH: All profits of the business of the partnership shall be ascertained on December 31, 1927, and on December 31, 1928, from the books of account of the firm and, after charging all expenses, all bad and doubtful assets and all losses, *779 such profits when so ascertained shall be divided among the partners and be paid to them in the following proportions; * * *

* * *

SIXTEENTH: The decease of any one or more of the special partners during the term of this agreement shall not dissolve the limited partnership, but the same shall be continued by the survivors upon the consent of the personal representatives of such deceased special partner or partners who shall thereupon succeed to the partnership rights of such deceased special*1250 partner or partners.

* * *

EIGHTEENTH: The interest of any deceased or retiring partner shall be fixed and determined as of 12 O'clock noon of the date of his decease or retirement * * *.

Lynch died on November 11, 1927. Under the articles of partnership there was no dissolution of the firm or any liquidating distribution of the partnership assets as a result of his death. His estate succeeded him as a special partner in the firm.

The partnership accounts were closed as of December 31, 1927, after that date. Not until then was decedent's full share in the firm's distributable net income determined. His share, apportioned for the number of days preceding his death in 1927, amounted to $65,858.15. That sum included interest upon decedent's contribution to the firm's capital in the amount of $5,183.33. The interest was credited to decedent's account on the partnership books at the rate of $500 per month. No other amount was credited on the firm's books to decedent's account or distributed to him by the firm up to the time of his death.

The full amount of partnership distributable income apportioned for the year 1927 to decedent's interest in the firm was distributed*1251 to his estate and was reported as taxable income by the estate.

In the income-tax return for decedent for the period January 1 to November 11, 1927, there was reported as income from the partnership only the amount of $5,183.33, the interest upon decedent's capital contribution to the firm. The respondent has added as taxable income $60,674.82, representing decedent's interest in the distributable net income of the partnership for that period of time.

OPINION.

MARQUETTE: The petitioner contends that under section 218(a) of the Revenue Act of 1924 the principle of "constructive receipt" of income applies only to general partners in the ordinary common law partnership and hence is not applicable in the proceeding before us. Reliance is placed upon the statement in , and also in , that "the term partnership as used in section 218 refers only to ordinary partnerships." In the Burk-Waggoner*780 Oil Ass'n case the court was dealing with a joint-stock association and made use of the quoted statement in distinguishing such an association*1252 from a partnership. We find nothing in the statement or in its context to indicate that the court interpreted the statute as excluding limited partnerships from its scope, and we think petitioner has misconstrued the effect of the words quoted.

Similarly, in the Goldman case, supra, the quoted statement was used in a general discussion of partnerships in a proceeding having no question of general or limited partnerships for decision. Hence, the statement, even if we concede to it the meaning claimed by petitioner, is merely obiter dictum. In our opinion the statute in question applies to members of both limited and general partnerships. .

The present proceeding closely resembles that of ; affd., per curiam,. In that case we said:

The fact that the partnership business was to be continued by agreement until the end of the partnership's accounting period does not, in our opinion, mean that when the profits of the business for the year are finally determined at the end of the year a part thereof may not be properly attributed*1253 to the period when the decedent was alive and a part to the pariod after his death. * * * A case closely analogous to that with which we are concerned is , where both the partnership and partner who died during the year were on the calendar year basis and the Board there held that the share of partnership profits allocable to the decedent for the period of the year prior to his death should be included in the return filed for the decedent for such year.

The petitioners seek to distinguish the Goldman case from the case at bar, on the ground that the partnership was on the receipts and disbursements basis in that case, whereas in the present case the accrual method is being followed, but we fail to see that a distinction can be drawn on this ground which would in one instance exclude from the return of the decedent the income of the partnership attributable to such decedent to the date of his death and in the other include it. In either event, what we are seeking to arrive at is the decedent's share of the partnership net income as of the date of his death. Even though such share, in the case at bar, might*1254 not be distributable until the end of the partnership's accounting period, such and would be within the calendar year for which a return was required to be filed on behalf of the decedent and all income of the partnership for such accounting period properly attributable to the decedent would be includable in such return whether distributed or not. And this would be true whether the decedent was on the cash or accrual basis.

In our opinion there is no fundamental distinction between the Davison case, supra, and the present proceeding. Petitioner does not dispute the method by which respondent computed the proportion of profits allocable to the decedent Lynch, nor the amount. We conclude, therefore, that the determination of deficiency was correct.

Decision will be entered for the respondent.