courtcasedochead col-12">

GROVER C. BLUMER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Blumer v. Commissioner

Docket No. 28380.

United States Board of Tax Appeals

23 B.T.A. 1045; 1931 BTA LEXIS 1780;

July 3, 1931, Promulgated

*1780 For the year 1924 petitioner's business, which had been previously conducted as a sole proprietorship, was reported as a partnership throughout the entire year. The evidence established the fact that the partnership was not created earlier than some time in November or December, 1924. The respondent's determination of a deficiency in income taxes, and of a penalty for fraud, sustained.

Wayne Ely, Esq., for the petitioner.

John H. Pigg, Esq., for the respondent.

MARQUETTE

*1045 This proceeding is for the redetermination of deficiencies in income taxes asserted by the respondent for the years 1922, 1923 and 1924, in the amounts of $1,031.03, $1,200.64 and 3,987.19, respectively. For the year 1924 the respondent has also asserted a fraud penalty *1046 in the amount of $1,993.60. The petitioner makes no contest with respect to the years 1922 and 1923. As to the year 1924 the error assigned is that the determination of deficiency and penalty was based upon the theory that petitioner's business during that year was not conducted as a partnership, but was owned solely by petitioner.

FINDINGS OF FACT.

In 1922 the petitioner opened*1781 a cafeteria known as Blumer's Food Store, in St. Louis, Mo. His wife assisted in the management and conduct of the business and received a salary for her services for each of the years 1922 and 1923. In her income-tax return for 1924 she reported a much larger amount, listing it as income from the partnership of Blumer's Food Store.

In the latter part of 1924 petitioner consulted an accountant, and learned that if the business was conducted as a partnership it would effect a reduction in the amount of his income tax. Late in the year 1924, or early in 1925, the petitioner and his wife signed articles of partnership. The provisions of those articles pertinent here read as follows:

Agreement dated December 30, 1923, between Nona Blumer and Grover C. Blumer, both of the City of St. Louis, State of Missouri, whereas it is mutually agreed as follows:

That the parties agree to form and hereby do form a partnership under the laws of the State of Missouri, for the purpose of doing a general retail food and restaurant business for the account of said partnership, to buy and sell foodstuff, to take, to hold and convey such other property, real, personal, or mixed, as shall be necessary*1782 or requisite for such partnership to acquire in order to obtain or secure the payment of any indebtedness or liability accrued to the partnership, to construct, own, rent or lease such properties as shall be necessary or incidental to the proper conduct of the foregoing business.

That the said partnership shall be conducted under the name of Blumer's Food Store.

That the said partnership shall commence on the first day of January, 1924, and shall continue during the lives of both parties heretofore mentioned.

* * *

In witness whereof the parties hereto set their hands and seals this 30th day of December, 1923.

(Signed) G. C. BLUMER.

(Signed) Mrs. NONA BLUMER.

Witness:

(Signed Mrs. ETHEL MEDLIN.

Witness:

(Signed) HAZEL O'KEEFE.

At the close of 1924 the accountant was employed to audit the books and accounts of Blumer's Food Store for that year, and to prepare the income-tax returns. He relied upon petitioner's statement *1047 to him that a partnership agreement had been entered into between Blumer and his wife. In making his audit the accountant made adjustments on the books, and changed the capital account from individual ownership to that of*1783 a partnership. Mrs. Blumer's account was credited with an equal amount of the profits of the business for the year 1924. No allocation of profits to Mrs. Blumer appeared on the books prior to the adjustments aforesaid.

The accountant prepared income-tax returns for the year 1924 for the petitioner, for petitioner's wife, and for Blumer's Food Store. The latter was on a form blank for a partnership, and named petitioner and his wife as the only, and equal, partners. The return was sworn to by the petitioner. The individual returns of the petitioner and his wife each reported an equal amount of income as having been received from Blumer's Food Store, as a partnership.

After investigation, the respondent determined a deficiency in petitioner's income tax for 1924, and also asserted a fraud penalty under section 275(b) of the 1924 Revenue Act.

OPINION.

MARQUETTE: The petitioner contends that on or about December 30, 1923, he and his wife formed a partnership to conduct the business of Blumer's Food Store, which partnership became effective January 1, 1924, and so continued throughout that year. The respondent has determined that the petitioner's business was conducted*1784 as a sole proprietorship during 1924, just as it had been theretofore, and on that basis deficiency in income taxes was asserted.

In support of his contention the petitioner offers a copy of the partnership agreement, the pertinent portions of which are set forth in our findings of fact; and the petitioner himself testifies that the agreement was signed some time in 1924, but he is unable to fix the month. As against the evidence, petitioner's wife testifies that the agreement was not signed until the latter part of 1924, or early 1925; one of the witnesses to the agreement, who was petitioner's cashier, testifies that both parties to the agreement signed it in her presence and that the signing took place late in 1924 or early in 1925; the accountant who closed petitioner's books and made out his tax returns testifies that "about November" 1924 petitioner asked him whether income taxes would be reduced if the food store business was owned by a partnership rather than individually, and that later petitioner told the accountant that a partnership agreement had been properly signed, but did not exhibit the document.

From all the evidence offered we are clearly of opinion that the*1785 agreement was not signed, and that no partnership between the *1048 petitioner and his wife existed earlier than some time in November, 1924, at best, and very possibly not before the close of that year. Manifestly, therefore, the petitioner has not overcome the presumption that the respondent's determination of a deficiency in 1924 income tax was correct.

The respondent also asserted a penalty against the petitioner under section 275(b) of the Revenue Act of 1924. That section reads as follows:

If any part of any deficiency is due to fraud with intent to evade tax, then 50 per centum of the total amount of the deficiency (in addition to such deficiency) shall be so assessed, collected and paid, in lieu of the 50 per centum addition to the tax provided in section 3176 of the Revised Statutes, as amended.

Section 907(a) of the Revenue Act of 1926, as amended by section 601 of the Revenue Act of 1928, relating to hearings before this Board, provides:

* * * In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, where no hearing has been held before the enactment of the Revenue Act of 1928, the burden of proof*1786 in respect of such issue shall be upon the Commissioner. * * *

Assuming, but not deciding, that under the laws of Missouri the petitioner and his wife might lawfully form a business partnership together, the fact that the motive for such a partnership was to reduce income taxes in the future would not constitute fraud, if the means employed were legal. ; ; ; .

But the petitioner was not content to reduce his income taxes for future years only, through the device of a partnership. He caused an agreement to be drawn dated December 30, 1923, which purported to create at that time a partnership between himself and his wife, effective on January 1, 1924. That agreement, the petitioner admits upon cross-examination, was not executed until some time in 1924; other evidence establishes that it was not executed until, at best, within the last two months of that year. There is nothing in the agreement giving to it any retroactive effect. It is a forward-looking document only, and is*1787 the basis of petitioner's contention that a partnership existed throughout the year 1924. We can not escape the conclusion that the petitioner knew, when he signed and swore to his personal income-tax return and to the partnership return, both for the year 1924, that no such partnership existed from the beginning of that year and, therefore, he knew that each of those returns was false. It is clear, also that the purpose of those returns was to evade a portion of the tax upon his income for that year. In our opinion the respondent's determination of fraud is amply sustained by the *1049 record. The plea of the petitioner that he relied upon an accountant to prepare his tax return can not justify the false statements in his return, especially in view of the fact that he did not exhibit the partnership articles to the accountant while the return was being prepared, but, instead, falsely stated that the agreement was effective for the entire taxable year. D. C. &larke,; .

Judgment will be entered for the respondent.

Citation profile

How this case has been treated — in progress