Petitions for review of orders of United States Board of Tax Appeals.
Before ALSCHULER and SPARKS, Circuit Judges, and CARPENTER, District Judge.
CARPENTER, District Judge.
These cases, consolidated for hearing, involve income taxes for the years 1920, 1922, and 1923, and the appeals are taken from orders of redetermination of the Board of Tax Appeals, entered February 9, 1929. The matter is brought to this court by petitions for review filed February 18, 1929, pursuant to the provisions of the Revenue Act 1926, c. 27, §§ 1001-1003, 44 Stat. 9, 109, 110 (26 USCA §§ 1225, 1226, and § 1224 and note).
Statutes and Regulations Involved.
Revenue Act 1918, c. 18, § 213, 40 Stat. 1057, 1065:
"Sec. 213. That for the purposes of this title * * * the term 'gross income' --
(a) Includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, * * * and income derived from any source whatever."
Revenue Act 1921, c. 136, 42 Stat. 227, 237: The corresponding section of the Revenue Act of 1921 (section 213(a) is the same.
Revenue Act 1926, c. 27, § 1211, 44 Stat. 9, 130 (26 USCA § 1065b): "Sec. 1211. Any taxes imposed by the Revenue Act of 1924 or prior revenue Acts upon any individual in respect of amounts received by him as compensation for personal services as an officer or employee of any State or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded."
"Art. 88. Compensation of State Officers and Employees. -- Compensation paid to its officers and employees by a State or political subdivision thereof for services rendered in connection with the exercise of an essential governmental function of the State or political subdivision, including fees received by notaries public commissioned by States, and the commissions of receivers appointed by State courts, is not taxable. Compensation received for services rendered to a State or political subdivision thereof is included in gross income, unless (a) the person receives such compensation as an officer or employee of a State or political subdivision, and (b) the services are rendered in connection with the exercise of an essential governmental function. But see section 1211 as to 1924 and prior years.
An officer is a person who occupies a position in the service of the State or political subdivision, the tenure of which is continuous, and not temporary, and the duties of which are established by law or regulations and not by agreement. An employee is one whose duties consist in the rendition of prescribed services and not the accomplishment of specific objects, and whose services are continuous, not occasional or temporary. * * *"
The facts as found by the Board of Tax Appeals are fully set forth in 14 B.T.A. 844, and for economy of space are not here restated, but are referred to. Both petitioners ...