Messner v. Dorgan , 228 N.W.2d 311 ( 1974 )

JOHNSON, Judge

(concurring in part and dissenting in part).

I am in agreement with the analysis made by the majority opinion, particularly as it relates to the Commissioner’s position that the regulation in question creates some form of irrebuttable presumption. However, I believe the appropriate remedy to be a remand for additional proceedings before the Tax Commissioner under the Administrative Agencies Practice Act. There has been a disagreement as to the legal effect of the regulation and the statute relating to income from jointly owned property. As that question has been resolved by the opinion of this court, a factual determination should be made of the income allocated between the husband and wife according to the capital interest of each, the management and control exercised by each, and the services performed by each with respect to such property. See § 57-38-31, N.D.C.C.

Questions of fact are properly determined before the administrative agency where there is opportunity for the presentation of evidence and the examination and cross-examination of witnesses. See §§ 28-32-13 and 28-32-19, N.D.C.C. While there have been previous proceedings before the Tax Commissioner, the question has not been considered in the legal framework established by this opinion.