dissent">Hill, J.,

dissenting: The brokerage firm of Gude, Winmill & Co. was, in my view, a partnership only of its members designated “general partners.” All of such general partners, among whom petitioner was included, contributed services in the operation of the firm’s business. Only four of them contributed capital. Such contribution constituted capital investments which were subject to the risks of the business. In the distribution of the partnership profits it was provided in the partnership contract that interest on such capital investments at the rate of 6 per cent per annum should be paid and that the remaining profits should be apportioned on the basis of stipulated percentages thereof. Such percentages were obviously computed and determined solely upon the estimated value to the firm of the services of the respective general partners. Thus, it appears that such arrangement embraces all the elements necessary to constitute a partnership in fact and in law.

It is my opinion that Edna B. Morris, wife of the petitioner, and Viola T. Winmill, wife of the general partner Robert C. Winmill, who are named in the partnership agreement of Gude, Winmill & Co. as limited partners, do not, under the facts here, qualify in any sense as partners in such firm. The status of Viola T. Winmill in this connection is mentioned only because her status is the same as that of Edna B. Morris, with which we are here concerned. Neither of the so-called limited partners made a contribution to the capital of the firm. Neither of them had at any time a capital investment in the firm. Each merely loaned money to the firm. The money so loaned bore interest at the rate of 6 per cent per annum and was not subject to the risk of the business of the firm. Each of the limited partners could have legally demanded a return of her loan at the end of the partnership term, to wit, April 30, 1945. Not only do the articles of co-partnership provide for the repayment of the loans, but also provide in effect that the general partners shall hold the limited partners harmless from partnership losses.

Under tha articles oí copartnership the limited partners were to perform no services for the partnership and were to have no voice in the formulation of the policies or the conduct of the business of the firm. In fact, they performed no services and took no part whatever in the conduct of the firm’s business.

The rate of interest provided for the use .of the money loaned by the limited partners was by agreement of the partners fixed as a fair compensation for such use.

There was paid to Edna B, Morris monthly during the tax year involved the specified rate of interest on her loan. In addition thereto there was credited to her on the books of the firm the stipulated 2 per cent participation in the profits of the firm’s business, no part of which was used in the firm’s business. It was used to pay her taxes and to purchase securities in her name and for her account.

I think it clear on the above recital of facts, which is supported by the record, that Edna B. Morris did not contribute either capital or services to the partnership and that she did not join or intend to “join together in the present conduct of the enterprise” of the partnership, and that she did not act “with a business purpose” for the partnership in advancing the $80,000 loan. The only business purpose which she had in making such loan was the personal purpose of receiving profit from such advancement as a loan.

It can not be seriously contended under the facts here that Edna B. Morris earned or contributed to the earning of the profits of the partnership either by service rendered or by the money loaned. I think, therefore, it must be held that the profits which she received under the 2 per cent participation arrangement are attributable solely to the earnings of her husband, the petitioner herein, and, accordingly, that he is taxable thereon.

Harron and Opper, JJ., agree with this dissent.

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