The opinion
Opper, J., dissenting: The futility of attempting to deal with the proper apportionment of income tax burden in our present-day economy by resorting to complicated and technical rules of ancient property law seems to me aptly illustrated by this proceeding. Tenancies by the entirety have grown up over the centuries accompanied by concepts, traditions, and developments which I doubt we are even in a position to assay correctly without deep study and careful historical research.
But even a casual acquaintance with the background of titles by the entirety shows that the varied principles upon which they are founded are at war with the theories to which we resort in dealing with current tax problems, and that if they are employed, they lead to results which are both absurd and contrary to the superficial consequences. Thus, the very foundation of a tenancy by the entirety is that both husband and wife own all the property. They each have it all, and not half — • “per tout et non per mie.” Alles v. Lyon, 216 Pa. 604 ; 66 Atl. 81 . If we say that the husband is not to be taxed because he does not own this income, that conclusion is at variance with the legal fact that he does. “* * * the accruing income * * * belongs- in its entirety to each of the two * * O'Malley v. O'Malley, 272 Pa. 528 ; 116 Atl. 500 . Use of the concept should reduce to the absurdity that both are taxable on all of it.
Correspondingly, the doctrine derives from the ancient assumption that husband and wife are one; yet our tax law treats them as two, and only such treatment could lead to the result reached in the opinion in this proceeding. It is even doubtful whether such changes as have been made in the legal status of married women entitled petitioner’s wife to any of this income as a matter of law. The implication from the Pennsylvania cases at least is that, if the husband secures the income, he is entitled to retain it in the absence of a severance of the matrimonial relationship by divorce. O'Malley v. O' Malley, supra; cf. Jones v. Smith & Co., 149 N. C. 318 ; 62 S. E. 1092 .
For my part, I should have been satisfied to see this situation treated as we would if it were the ordinary carrying on of a business in which the parties to the marriage participated to a greater or less extent. This might require an ascertainment of the contribution in property and services made by petitioner and his wife, respectively, to the earning of the income which is sought to be taxed. But that is no insuperable obstacle. Cf. Max German, 2 T. C. 474 .
Arundell and HaBRON, JJ., agree with this dissent.