Ridge L. Harlan and Marjory C. Harlan - Page 30




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                    The Ventura store was not operated by a partnership.              
               It was community property of the petitioners and the income            
               therefrom was community income.  Each of the petitioners,              
               therefore, should have reported one-half of the gross income           
               from the business.  Leslie A. Sutor, 17 T.C. 64, 67.  The              
               respondent urges that they did not do so in their individual           
               returns, and that their failure to do so is an omission from           
               gross income by each of them.  But we think it is                      
               unrealistic to say that the petitioners did not report the             
               gross income of the Ventura store (with the exception of the           
               $17,946.97 which each of them omitted).  They did so on Form           
               1065, a “partnership return.”  Although there was no                   
               partnership between them in the business of this store, Form           
               1065 returns were filed for the years 1938 to 1948,                    
               inclusive, at the suggestion of a revenue agent to                     
               facilitate the reporting of the community income of the                
               store.  The so-called partnership return filed for 1943                
               reported the gross income of the Ventura store in which                
               petitioners each had an equal interest.  It was not the                
               return of another taxable entity.  Cf. Corrigan v.                     
               Commissioner, 155 F.2d 164, 166 (C.A. 6); Elvina Ratto, 20             
               T.C. 785, 789.  It showed income of the community, a                   
               nontaxable entity.  In the circumstances we think that the             
               so-called partnership return filed for the Ventura store was           
               merely an adjunct to the individual returns of Jack and Mae            
               Rose and must be considered together with such individual              
               returns and treated as part of them.  This case is thus                
               distinguished from the Switzer case where the return in                
               question was a proper partnership return, whereas here it              
               was nothing unless it was an adjunct to the individual                 
               returns.  But if the Commissioner is now and henceforth to             
               concede, contrary to our decision in the Switzer case, that            
               a valid partnership return may be read with the return of an           
               individual partner to arrive at the total gross income                 
               stated in the partner’s return, then, a fortiori, the Form             
               1065 return in this case which was filed merely to                     
               facilitate the reporting of community income of the                    
               petitioners, similar returns having been accepted for a                
               number of years for that purpose by the Commissioner, would            
               have to be read together with the individual returns of the            
               partners to ascertain how much gross income was reported by            
               each of them.  Cf. Germantown Trust Co. v. Commissioner, 309           
               U.S. 304; Atlas Oil & Refining Corporation, 22 T.C. 552,               
               557.  We hold, therefore, that one-half of the gross income            
               appearing on the Ventura store “partnership” return must be            
               imputed to the individual return filed by each petitioner in           
               determining the total gross income stated therein for the              
               purposes of section 275(c). [Emphasis added.]                          





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