The opinion
Tyson,
dissenting: The majority opinion reaches the conclusion that there was no gift from Mann to petitioner because Mann in making the transfer to petitioner by the letter of May 19, 1933, received as consideration therefor petitioner’s agreement to complete the unfinished cases that were in Mann’s office, including the Tex-Penn case. The grounds in the opinion for reaching that conclusion are (a) that the expression in the letter to the effect that petitioner was “authorized to complete all the work on the above named cases and arrange for and collect the fees due”, when taken in connection with (b) the facts that, at the time of the writing of the letter, Mann desired to retire from active practice and that much more work was yet to be done, show that petitioner assumed the duty “to complete all work on the above named cases”, including the Tex-Penn case and that the assumption of such duty constituted a consideration for the transfer resulting in there being no gift made thereby.
The fact that Mann desired to retire from active practice and that there was much more work to be done on the Tex-Penn case after the date of the letter would seem to have little, if any, evi-dentiary bearing on the question of whether or not there was a consideration for the transfer, since the sole agreement of the parties is embraced in the letter and the acceptance of its terms by petitioner. The letter is, in my opinion, so plain and unambiguous in its terms as to preclude any attempt at interpretation through consideration of the mere circumstances that Mann desired to retire from active *985 practice and that there was, at the time of the writing of the letter, much work yet to be done in the Tex-Penn case; and in this connection it is to be noted that at the time of the writing of the letter the Tex-Penn case had been submitted to the Board and it was not known, of course, what the decision of the Board therein would be and, consequently, it was not known what, if any, further work' would be done by counsel engaged in the case. So, in the final analysis, the specific question presented as a test of the soundness of the conclusion reached in the majority opinion, that there was no gift of Mann’s interest in the Tex-Penn fee, is, Did petitioner in accepting the terms of Mann’s letter agree to complete the work on the Tex-Penn case because of the language in the letter which “authorized [petitioner] to complete all the work on the above named cases and arrange for and collect the fees due” ?
I do not think the language above quoted from the letter indicates that petitioner accepted the transfer of Mann’s interest in that part of the fee in the Tex-Penn case already earned with the burden imposed upon petitioner, as a consideration for the transfer, that he should complete the work on that case. Such language merely gave petitioner “authority” to do such work, if any, but so far only as Mann was concerned. By the use of these words it was obviously intended by Mann that if the Tex-Penn parties were willing, and only in such event, petitioner could step into Mann’s shoes and would be fully authorized, so far as Mann was concerned, to complete the work in the Tex-Penn case. Without further authority fiom the Tex-Penn parties to complete the work petitioner could not have'completed it, since he at the time of the transfer had, as shown by the record (but not by the majority opinion), no contractual relations, express or implied, with the Tex-Penn parties with regard to such work and the question of whether or not those parties would authorize or permit petitioner to complete the work, if any further work was to be done, was an open one. Mann, at the time the letter was written, was the only one of petitioner, Jones, or Mann, who sustained any contractual relations, express or implied,' with the Tex-Penn parties with regard to their pending case. Then how can it be said that Mann, in authorizing petitioner to complete the work, intended to, or did, or could, impose upon petitioner, as a consideration for the transfer, an obligation to complete the work, since such obligation could not be performed by petitioner unless and until it was so agreed to by the Tex-Penn parties.
There remains the question of whether the petitioner sustained his burden, under the determination of the respondent, of affirmatively showing that the transfer made by the letter of May 19, 1938, was a gift from Mann to petitioner of Mann’s portion of the fee in the Tex-Penn case earned by Mann up to the time of the transfer.
*986 Immediately prior to the writing of the letter in question Mann called petitioner into his office and said: “Harry, I am going to do something for you your father never did. I am going to give you all my interest in the cases we have — draw up a paper”, and after this statement by Mann the letter was written by petitioner and signed by Mann. The letter evidencing the transfer fails to show, as above stated, that there was any agreement for petitioner to complete the work on the Tex-Penn case. On the contrary, the language of the letter itself shows that a gift to petitioner was intended to be, and was, made by Mann of his interest in the fee in the Tex-Penn case earned up to the date of the letter to petitioner. The letter, signed by Mann, recites no consideration, but states, inter alia, that “my interest in the fees amounting to one-half or more of all fees to be collected in the above-named cases is hereby assigned and granted to you * * * I desire you to have, and this letter gimes you whatever interest I have or may hereafter have in said cases by reason of our association.” (Italics supplied.) Petitioner testified that the transfer was made to him without consideration, and a vice president of the Munsey Trust Co. who was well acquainted with Mann, seeing him probably three or four times a week in the bank and probably two or three times a week in an apartment building in which they both lived in Washington, testified that just about the time Mann left Washington and shortly after writing the letter Mann stated to him that his (Mann’s) health was poor, “that he was going to give up his business and that h'e had given to Mr. Friedman his interest in all the unfinished business in the office.” This testimony of the vice president of the Munsey Trust Co. was uncontradicted and its admission in evidence was not objected to by respondent. In my opinion, the evidence just recited establishes that Mann, by his letter of May 19, 1933, made a gift to petitioner of his, Mann’s, interest in his portion of the fee in the Tex-Penn case earned up to the time of the writing of that letter.
Petitioner testified that the value of Mann’s interest in the Tex-Penn case fee for services theretofore performed at the date of Mann’s assignment of that interest to petitioner was “two-thirds of $35,000 or approximately $24,000”, and I think that this testimony establishes that value as being $23,333.33. Petitioner, as shown in the majority opinion, had been practicing law in Washington since 1924 and had specialized in Federal tax practice, consisting of extensive appearances before the Bureau of Internal Bevenue, this Board, the Circuit Courts of Appeal, and the United States Supreme Court. This experience as a practicing attorney would seem to qualify petitioner to testify as to the value of Mann’s interest in the Tex-Penn *987 case fee at the time of the transfer to petitioner of that interest and, although of course petitioner is the interested party with respect to this matter, his testimony to this effect is undisputed and I see no reason for failing to give conclusive weight to such testimony in the absence of any other evidence to the contrary.
Since the amount of $23,333.33 represents Mann’s share of the fee collected in 1938 in the Tex-Penn case for legal services rendered by him in that case prior to the assignment, it constituted income earned by Mann, petitioner’s assignor, and we should hold that such assigned income is not taxable to the petitioner, assignee. Helvering v. Eubank, 311 U. S. 122 . Cf. Lucas v. Earl, 281 U. S. 111 ; Helvering v. Horst, 311 U. S. 112 ; and Harrison v. Schaffner, 312 U. S. 579 .
The majority opinion reaches an alternative conclusion to the effect that, even if there was a gift from Mann to petitioner, it was “a gift of Mann’s interest in the cases in his office and not a gift of the fee”, and that as to such gift the ruling here is controlled by Blair v. Commissioner, 300 U. S. 5 , rather than by Lucas v. Earl, supra; Helvering v. Horst, supra; Helvering v. Eubank, supra and Harrison v. Schaffner, supra, which latter four cases, the majority opinion further states, “are not helpful to this case”, because such cases “are cases of the assignment of income only.” I think this attempted distinction is not substantial, since Mann’s only interest in the cases was his interest in the fees to be derived therefrom and the gift was of that interest, and the value thereof does not constitute income to the petitioner.
The majority opinion reaches another alternative conclusion, to the effect that “petitioner’s retention of the larger share of the Tex-Penn fee was simply a readjustment of fees among associates in recognition of the amount of labor performed in bringing the case to a conclusion.” I am of the opinion that the evidence does not justify such a conclusion, since, as shown by the record (but not by the majority opinion), there were no contractual relations existing between petitioner and Mann at the time of the transfer or at any other time; and there being no such relations there could have been no readjustment of fees between Mann and petitioner; and'even if the transfer was made in recognition of services performed by petitioner over and above those contemplated, as stated in the opinion, it may be well said (adopting an apt expression in the hereunder cited Bogardus case) that it “by no means follows that [the transfer in question] was not a gratuity.” Petitioner had never been in the employ of or under any agreement with Mann with regard to performing services in the Tex-Penn case, and what was further said as follows in the Bogardus case, where gratuities were paid by a corporation to persons who were never in its employ, is apposite to *988 the facts in this cáse: “There is entirely lacking the constraining force of any moral or legal duty as well as the incentive of anticipated benefit of any kind beyond the satisfaction which flows from the performance of a generous act.” Bogardus v. Commissioner, 302 U. S. 34 .
For the foregoing reasons I dissent from the majority opinion.
Leech agrees with this dissent.