Curren v. Commissioner , 34 B.T.A. 946 ( 1936 )

HECTOR MCGOWAN CURREN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Curren v. Commissioner

Docket No. 81826.

United States Board of Tax Appeals

34 B.T.A. 946; 1936 BTA LEXIS 626;

August 14, 1936, Promulgated

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Petitioner, an attorney, pursuant to a New York statute, was appointed counsel to the county clerk of Kings County, New York. He received an annual salary, and his duties, which were of a continuous and permanent nature, were prescribed by the county clerk. He was subject to call at any time and there was no limitation as to the amount of work he might be required to do. Held, the salary received by him was not subject to income tax.

John W. Townsend, Esq., for the petitioner.

Frank M. Thompson, Esq., for the respondent.

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MELLOTT

Petitioner appeals from respondent's determination of a deficiency in income tax for the year 1932 in the amount of $465.94 and for the year 1933 in the amount of $577.61, a total of $1,043.55.

The deficiency was determined by the respondent on the theory that the salary received by the petitioner during the taxable years, from the County of Kings, New York, constituted taxable income.

FINDINGS OF FACT

The petitioner is an attorney at law and resides at Brooklyn, New York, where he has been engaged in the practice of law since 1908. He was originally appointed counsel to the county clerk of Kings County in January 1922 under the section of the General Statutes of New York authorizing the county clerk to "employ a counsel at a salary not to exceed $3,500 per annum." His salary was subsequently fixed at $4,500 per annum.

Section 6 of chapter 704, Laws of 1901, State of New York, provides:

The Clerk of the County of Kings shall have the power to appoint and at will remove all deputies, clerks, and other employees and assistants in his office, subject to the provisions of the Civil Service Law and shall prescribe and regulate their respective duties, and in his discretion require of each of his said subordinates a bond and determine the amount thereof.

Petitioner, as counsel to the county clerk, was not subject to the provisions of the civil service law, his position being exempt.

The county clerk is a constitutional officer, elected for a term of four years. Since 1922 the petitioner received subsequent appointments at the beginning of each county clerk's term of office. During the taxable years in question he served under an appointement dated January 1, 1932, reading as follows:

Know all men by these presence [sic]:

That I, John M. Harman, County Clerk of Kings, State of New York, in and by virtue and the authority of statutes in such case made and provided do hereby appoint Hector McGrowan Curren counsel to the County Clerk of Kings County and to hold office until his successor shall be appointed.

Petitioner took an oath of office reading as follows:

I, Hector McG. Curren do solemnly swear, that I will support the Constitution of the United States, and the Constitution of the State of New York; and that I will faithfully discharge the duties of the office of Counsel to the County Clerk of the County of Kings, according to the best of my ability.

The petitioner's salary as counsel to the county clerk was $4,500 in the year 1932, all of which he received. In 1933, however, the salaries of all employees of the County and of the City of New York were reduced, by reason of which petitioner received during that year $4,184.88. Petitioner received his salary in bimonthly payments at the same time and in the same manner as all employees of the county, the County of Kings being within the City of New York, and all receipts from the county clerk's office being turned over to the chamberlain of the City of New York and the comptroller of said city. Petitioner exercised his right to contribute to the New York City Employees Retirement Pension Fund and $9contributed semimonthly to said fund.

Petitioner's duties were not outlined by any statutory provision but, as stated by him, were "necessitated by circumstances." He was responsible to the county clerk, who prescribed his duties.

The county clerk of Kings County is likewise clerk of the Supreme Court of the State of New York and clerk of the court in the County of Kings, as well as county clerk. Petitioner advised the county clerk in his three capacities. Incidental thereto he also advised the justices of the Appellate Division, the clerks of the Appellate Term of the Supreme Court, the clerks of the Supreme Court at trial and special terms, and the judges and clerks of the County Court, particularly in connection with administrative matters affecting or incidental to the duties of the county clerk. He consulted with the judges respecting the destruction of official papers, concerning incompetency proceedings, and the allowance of fees to referees appointed to examine accounts; also regarding the operation of the particular department of the county clerk's office dealing with Appellate Division matters. He also advised with the judges as to the proper method of swearing in inferior judges and county officers and regarding the bonds of receivers and of committees. He represented the county clerk in all litigation such as mandamus proceedings to compel him to tax costs, to file papers without fees, etc.; he examined documents presented for recording to determine their proper classification and whether or not they might properly be filed with the county clerk in one of his three capacities. Mechanics' liens were required to be filed with the county clerk, while deeds, mortgages, leases and kindred documents were required to be filed in other offices. Petitioner advised the county clerk concerning the proper fees to be charged for recording papers, certifying records and the like and was frequently called upon to give written opinions.

Petitioner was also required to appear before the Board of Estimates and Apportionment on all matters affecting the county clerk's office. He also appeared before the budget director concerning the legal phases of the budget with particular reference to the employees in the county clerk's office and kept track of all legislation affecting the county clerk's office, furnishing opinions with reference thereto to the assistant corporation counsel to aid him in handling such legislative matters.

The petitioner's services during the years in question were of a permanent and continous nature. He was subject to call at any time by any of the judges, by the county clerk, and by his assistants, and there was no limitation as to the amount of work he might be required to do. The county clerk had first call upon his services and the right to require his full time if necessary.

Petitioner shared an office with the county clerk and was furnished with official stationery for his official correspondence. Since the county clerk's office did not have a law library, petitioner used his own private office and library in connection with his various official duties.

Petitioner was free to engage in private practice and did so engage during the taxable years before us. He maintained a commodious suite of rooms for his private law office and employed four attorneys to whom he delegated a large part of his private practice, which was remunerative. He personally undertook to do all of the work as counsel to the county clerk, though when necessary, he used his employees in gathering data for the opinions rendered and in checking the annotations.

In performing his duties he was required to exercise, and did exercise his independent judgment and best professional skill.

OPINION.

MELLOTT: The issue, as succinctly stated by the respondent upon brief, is "whether the Federal Government, in asserting an income tax upon the amount received by this petitioner as Counsel to the Clerk of King's County, is in reality, attempting to tax an instrumentality of a state or a political subdivision thereof." If it is, the petitioner must prevail; for, as recognized by both parties, "* * * neither government may destroy the other nor curtail in any substantial manner the exercise of its powers. Hence, the limitation upon the taxing powers of each * * *." (, and cases cited.)

Petitioner contends that he was an officer of King's County; in the alternative he contends that "if not an officer, he must in any event be considered as an employee of the county." Respondent argues that the relationship between petitioner and the county clerk was that of attorney and client, and that he was neither an officer nor an employee of the county but an independent contractor.

Much has been written by the courts and this Board upon the fundamental question in issue. Counsel for both parties, with commendable thoroughness, have cited many of the most pertinent cases, all of which have been considered; but in the interest of brevity we will refrain from discussing them in detail. We will limit our discussion to those which seem most important.

Petitioner relies most strongly upon the decision of this Board in . In that case petitioner, a lawyer, was employed by one of the towns (townships) of Nassau County, New York, as its counsellor. His duties were somewhat similar to those of petitioner, and consisted generally in advising with the town officers, conducting the litigation in which the town was involved, and performing "all the legal services which a town of that size and nature might require of its principal legal officer." It was held that, if he was not an officer - which was not definitely decided - he was at least an employee engaged in performing usual governmental functions, and the salary paid to him was held to be exempt from the Federal income tax.

Respondent cites , in which the claimed exemption was denied. In that case the petitioner, who likewise was an attorney, represented and advised with a village and two separate school districts. He was paid a "retainer" for his general services and a per diem to cover other services. His time was his own and neither the village board nor the school boards had first call upon his services, or imposed upon him any restrictions as to the number of his clients. He attended to the business of the various boards substantially as he attended to the business of any other client, which clearly justified the conclusion reached that he was an independent contractor, and that the compensation paid to him was not exempt from the Federal income tax.

Numerous cases have come before the courts and this Board in which a professional man has claimed that the compensation received by him for services rendered to a political subdivision was exempt. Uniformly, exemption has been denied where the facts showed that such services were rendered as an independent contractor. Typical cases are: , an attorney employed by a state to conduct one piece of litigation; .lucas v. , an attorney employed by cities under contracts for specific services; ; and , an attorney employed as special counsel for a drainage district; and As to architects, see ; ; affd., ; ; ; ; ; ; and . As to engineers, see ; affd., ; and cases cited in Cf. , actuary for policemen's and firemen's benefit funds, and , real estate valuator.

The underlying principle of the cases, as recognized in the briefs filed with us, is that one employed in an isolated transaction, or to accomplish a specific object, being free to select the manner, means and instrumentalities to be adopted in completing the task undertaken, is not an officer or an employee but is an independent contractor. In such cases there is not present that control or right of control by the employer "which characterizes the relation of employer and employees." () Respondent argues that such control and right of control are lacking here, citing in that connection, the Gabel case, supra, and ; certiorari denied, ; but we are of the opinion that no such holding is justified under the facts set out in our findings.

While it is true that petitioner was required to exercise, and did exercise, his independent judgment and best professional skill in rendering the services here involved, that is true in the majority, if not in all, of the cases where a professional man is employed. A chemist, bacteriologist, or technician in a laboratory, whether employed by a private industry or by a political subdivision, is required to exercise his independent judgment and best professional skill in performing the task assigned; but he may nevertheless be an employee if his employer retains the right of control over his activities and can direct how and when he shall perform his work. If, however, either an industry or a municipality engages a technician to deliver to it a completed task, and exercises no control over the means or instrumentalities whereby the results sought are achieved, and has no right to exercise such control, then the relationship between the parties is that of independent contractor rather than employer and employee.

The courts and this Board have applied the above test in many cases and have held that even in the absence of the actual exercise of the right of detailed control, a professional man nevertheless may be an employee. Some of the cases are: ; ; ; ; ; ; ; ; ; affd., ; ;; . The crucial test is the right to exercise control, which we believe the evidence clearly indicates the county clerk had as to this petitioner.

We are of the opinion that petitioner was an employee of a political subdivision of New York, engaged in a usual and essential governmental function. (See art. 643, Regulations 74.) We therefore hold that the compensation received by him during the taxable years before us was exempt and that respondent erred in determining the above deficiency.

Judgment will be entered for the petitioner.