The opinion
OPINION.
Love:
The petitioner contends that his wife’s earnings for the years 1922 and 1923 belonged to her as her separate property and were correctly returned by her in the first instance. The respondent contends that under the laws of the State of California such earnings become community property and, under United States v. Robbins, 269 U. S. 315 , should be taxed to the husband. It may be well to note that under the laws of the State of California, a wife is competent to contract with her husband. This is not true in some of *467 the States. In Blair v. Roth, 22 Fed. (2d) 932, the court said, inter alia:
In the absence of a valid agreement to the contrary, it is conceded the earnings of either spouse become community property.
As presented by the pleadings, as well as by contentions of both parties at the hearing, the issues raised were:
First, an issue of fact as to whether or not there was an agreement, a contract, between the husband and wife that her salary should be her separate income and not community income under the laws of the State of California.
Second, an issue of law as to whether or not, regardless of the issue of fact as to whether there was such a contract, the income was, under the laws of the State of California, community, income, and as such, made returnable by the husband under the decision in the case of United States v. Robbins, supra.
Since the hearing in the instant case, the Supreme Court has handed down its opinion and decision in the case of Lucas v. Earl, 281 U. S. 111 . In view of the holdings of the court in the Ecvrl case, it is unnecessary for us to decide either of the issues presented in this case.
Under the Earl case, we hold that the salary in question was correctly returned by the wife who earned it.
Reviewed by the Board.
Judgment will be entered umder Bule 50.
Murdock dissents.