The opinion
*808 opinion-.
Smith:
We have heretofore had occasion to discuss and apply the decisions of the Supreme Court (United States v. Robbins, 269 U. S. 315 ; Lucas v. Earl, 281 U. S. 112 ; United States v. Malcolm, 282 U. S. 792 ), regarding the taxability of income of spouses domiciled in California, and in proceedings presenting facts sufficient to sustain the existence of a prior agreement between the spouses that the earnings of either were to remain the separate property of the one whose labor produced the earnings, the Board has held that such earnings were not to be taxed to the husband as community property. The facts of record show that the petitioner and his wife had, for many years, abided by their agreement respecting the earnings of each, and the compensation here in controversy was clearly the income of the wife. Following those decisions, we hold that the respondent erred in taxing to the petitioner the separate earnings of his wife. Andrew B. C. Dohrmann, 19 B. T. A. 466; C. R. Davis, 20 B. T. A. 931; W. A. Both, 22 B. T. A. 587. See also F. J. Garman, 25 B. T. A. 162.
Judgment will be entered for the petitioner.