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BURGES v. COMMISSIONER OF INTERNAL REVENUE.

No. 6840.

Circuit Court of Appeals, Fifth Circuit.

March 10, 1934.

Wm. H. Burges and A. IT. Culwell, both of El Paso, Tex., for petitioner.

Frank J. Wideman, Asst. Atty. Gen., Sew-all Key and John MaeC. Hudson, Sp. Assts. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, and L. W. Creason, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.

Before BRYAN, FOSTER, and HUTCH-ESON, Circuit Judges.

HUTCHESON, Circuit Judge.

By this petition Burges challenges the ruling of the Board that his salaries as general attorney and general counsel for three irrigation districts were subject to income tax.

There are differences between the facts of this case and Register’s [Register v. Com’r of Internal Revenue (C. C. A.) 69 F.(2d) 607], this day decided adversely to the claimed exemption, but none of them arc significant. Register represented two cities; Burges three irrigation districts, two in Texas, one in New Mexico. Register contracted for a salary and fees; Burges for salary only. Each was on a yearly contract; neither held an office. While the employment of each was authorized by law, neither their duties nor their compensation was fixed by law.2 Each stood to the public corporations he represented in the relation of attorney and client, a relation fixed by the terms of the employment as to services and compensation. Neither gave the whole nor any considerable part of his time *610to any one of Ms public clients. Engaged in and enjoying a lucrative practice, each did the work of public and private clients alike in Ms own office, and with his own office force, Burges altogether, Register mainly

We agree with petitioner that the carpo-rations he represented possess and exercise governmental functions. We cannot agree, however, that he was either an officer or an employee of any of them, or that to require him to pay income tax on the salary each of them paid him will have the effect of directly burdening the performance of governmental functions.

Petitioner’s proof fails, just as Register’s did, to make out the claim for exemption. His petition is denied.

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