Opinion
Docket No. 19958.
1950-06-15
WILLIS H. VANCE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
J. Louis Warm, Esq., for the petitioner. W. Herdman Schwatka, Esq., for the respondent.
In December, 1942, petitioner and his partner dissolved a partnership engaged in operating moving picture theatres, and each partner assigned his entire proprietary interest therein to his wife. The wives formed a new partnership in 1943, which operated the moving picture theatres during the taxable years. Held, the petitioner is not taxable upon his wife's distributive share of partnership income in 1943 or 1944. J. Louis Warm, Esq., for the petitioner. W. Herdman Schwatka, Esq., for the respondent.
This proceeding involves income tax deficiencies for 1943 and 1944 in the respective amounts of $10,190.51 and $8,847.92. The only issue is whether petitioner is taxable upon partnership income received by his wife. Other adjustments made by the respondent are conceded, or the issue raised with respect thereto abandoned.
Petitioner's income tax returns for 1943 and 1944 were filed with the collector of internal revenue at Cincinnati, Ohio.
FINDINGS OF FACT.
Petitioner and his wife, Mayme C. Vance, were married in 1926. At the time of his marriage petitioner was 24 years of age and was employed as manager of the Boulevard Theatre, a moving picture theatre in Cincinnati. In 1927 he acquired a lease on and operated the Strand Theatre in Covington, Kentucky. This venture failed in 1928 after about a year's operation. Petitioner then assigned the lease to L. B. Wilson and went to work for Wilson as a manager at $60 per week. In 1931 Wilson reduced petitioner's salary and petitioner quit.
After leaving Wilson petitioner borrowed $500 from an aunt and leased the Latonia Theatre in Latonia, Kentucky. At the time petitioner acquired this lease he and his family, a wife and two young daughters, were living in a rented apartment in Park Hill, Kentucky. The Latonia Theatre proved successful and petitioner moved his family to Latonia and bought some furniture.
In 1933 the Union Terminal was completed in Cincinnati. The Terminal had a small theatre, which petitioner leased. This venture lasted about a year and was a failure.
In 1934 petitioner became interested in promoting a large colored theatre in St. Louis. To acquire funds for this promotion he had to sell a one-half interest in the Latonia Theatre. Petitioner's wife opposed the sale. The St. Louis promotion failed and petitioner had to sell his other one-half interest in the Latonia Theatre to cover checks he had issued. When petitioner wound up his St. Louis venture he was without funds, his rent was about six months in arrears, his grocery bill about three or four months behind, and he had other bills to meet. In order to meet expenses he mortgaged the furniture.
On February 26, 1938, the Willis Vance Ohio Co., an Ohio corporation, obtained a 30-year lease on property, hereinafter referred to as the Ohio Theatre property, in Norwood, Ohio. On July 7, 1939, the Monmouth Co., a Kentucky corporation, acquired a 30-year lease on property hereinafter referred to as the State Theatre in Newport, Kentucky. Neither of these lessees ever operated the theatres. Petitioner and William S. Bein owned the capital stock of each company equally. On or about August 1, 1938, petitioner and Bein organized a partnership, known as Ohio and State Theater, which operated the theatres until the dissolution of the partnership in December, 1942. Each theatre was operated profitably.
In 1942 petitioner, his wife, and their three children lived in a home that belonged to Mayme C. Vance. There was a mortgage on the property. Petitioner was then promoting or planning to promote another theatre, an outdoor theatre, and the Cincinnati Stadium. The latter started out as a million dollar promotion. Petitioner's wife was worried about his promotions, the funds that would have to be borrowed, and the threat posed thereby to the family's security and livelihood. Petitioner discussed the problem with his attorney, who advised him to provide for the security of his family. Petitioner also discussed the problem with his partner, William S. Bein, who was considering a similar problem as to his family. As a result of these discussions petitioner decided to give his wife his entire interest in the Ohio Theatre and in the State Theatre. His partner decided to make a like transfer of his entire interest in the two theatres to his wife, Esther C. Bein.
On December 30, 1942, petitioner and William S. Bein, as the sole stockholders of the Willis Vance Ohio Co., voted ‘to dissolve the company and to wind up its affairs and to transfer all assets of the company, subject to its liabilities, to its stockholders.‘ On the same day petitioner, in consideration of love and affection, assigned all his right, title and interest in and to the assets of the Willis Vance Ohio Co. to his wife, Mayme C. Vance.
On December 31, 1942, the Willis Vance Ohio Co., as lessee of the Ohio Theatre property, transferred to Mayme C. Vance and Esther C. Bein all of its right, title, and interest in and to the lease on such property.
On December 30, 1942, petitioner and William S. Bein, in consideration of love and affection, assigned and transferred to their respective wives all of their right, title, and interest in and to the stock owned by them in the Monmouth Co., intending thereby to vest each assignee with one-half of all the outstanding stock of the corporation. Petitioner and Bein conveyed their stock interests in the Monmouth Co. by an assignment for the reason that the stock certificates and the stock record books had been lost. The assignment was prepared and witnessed by the attorneys for the assignors.
The Monmouth Co. was dissolved in September and October, 1944. The legal formalities to be complied with in dissolving a Kentucky corporation required a period of months and it was impossible to immediately dissolve the Monmouth Co. Bein's counsel thought that petitioner's attorneys were dissolving the Monmouth Co., as they were the Willis Vance Ohio Co., and some time elapsed before it was discovered that no steps had been taken to dissolve the Kentucky corporation. The lease on the State Theatre was assigned to Mayme C. Vance and Esther C. Bein by the Monmouth Co. on September 20, 1944, and the dissolution of the Monmouth Co. was formally completed shortly thereafter.
On or about January 1, 1943, Mayme C. Vance and Esther C. Bein executed a partnership agreement for the operation of the Ohio Theatre on the basis of sharing the profits and losses equally. Each of the parties contributed her 50 per cent interest in the business and property as capital of the partnership. Article VI recites that the parties contemplated the employment of Willis H. Vance as general manager of the partnership business operations.
On or about January 1, 1943, Mayme C. Vance and Esther C. Bein, as partners doing business under the name of ‘Ohio Theatre,‘ entered into a contract of employment with Willis H. Vance for the term of one year, and thereafter from year to year unless previously terminated as therein provided. For a salary of $40 per week, petitioner agreed to perform the duties listed, and agreed that he would not make policy changes, enter into leases or commitments for stores or rental space, or incur expenses in excess of $200 without the written consent of the partners. The employment contract specifically recites that Willis H. Vance ‘does not undertake to devote his entire time to the employment hereby contracted with First Party.‘ Petitioner insisted upon a contract which specified his duties in order to be protected in his other business activities.
The employment contract contained the following provisions with respect to termination of the contract (first party refers to Mayme C. Vance and Esther C. Bein, partners doing business as Ohio Theatre, and second party refers to Willis H. Vance.)
First Party understands that Second Party is engaged as General Manager for other theatres and business operations and that he does not undertake to devote his entire time to the employment hereby contracted with First Party. However, Second Party may undertake the management of theatres or business operations other than those managed by him on January 1, 1943, by giving First Party thirty (30) days advance written notice of his intention to do so. First Party shall then have the right, within fifteen (15) days after the receipt of such notice, to terminate the employment of the Second Party or to adjust the terms of employment of the Second Party. * * *
Either party to this Agreement may terminate it by written notice by Registered Mail addressed to the other and deposited in the United States Post Office addressed to the last known place of residence of the other, such notice to be deposited in the Post Office on or before December 1st of any year. Notice from Second Party to First Party shall be sent to each partner. Notice from the partnership shall be signed by both partners. In the event such notice is given by either Party, this Contract of Employment shall terminate on December 31st of the same year in which said notice is dated. * * *
This Contract shall terminate at the end of sixty (60) days from the date of the death of either of the persons constituting First Party.
On or about January 4, 1943, an account was opened with the Newport National Bank of Newport, Kentucky, in the name of ‘State Theatre (Partnership).‘ The signature card shows that ‘Willis Vance, Gen. Mgr.‘ was authorized to draw on the account.
On or about January 4, 1943, an account was opened with the Norwood Hyde Park Bank & Trust Co., of Cincinnati, Ohio, in the name of ‘Ohio Theatre (Partnership).‘ The signature card shows that ‘willis Vance, Gen. Mgr.‘ or ‘Mayme C. Vance-Partner‘ were authorized to draw on the account.
. The signature card gave the first name as ‘Ohio and State Theatres.‘
Article III of the partnership agreement provided that withdrawals from partnership bank accounts ‘shall be made only upon the joint signatures of both parties or their duly authorized agent.‘
On or about March 15, 1943, petitioner filed a gift tax return for 1942, in which he reported the gift to his wife of one-half of the shares in the Monmouth Co. and one-half of the assets of the Willis Vance Ohio Co., dissolved December 31, 1942.
On or about March 15, 1943, Mayme C. Vance filed a donee's information return in which she reported the gift of shares and assets from her husband.
On or about September 20, 1944, Mayme C. Vance and Esther C. Bein executed a partnership agreement with respect to the ‘State Theatre‘ in Newport, Kentucky. Each partner contributed her undivided 50 per cent interest in the property and business, as capital of the partnership, and agreed to share equally in the gains and losses resulting from the operation. Article VI recites that the parties contemplated the employment of Willis H. Vance as general manager of the partnership business operations.
During 1943 and 1944 Mayme C. Vance and Esther C. Bein intended to and did operate the State and Ohio theatres as partners within the meaning of section 3797(a)(2), Internal Revenue Code, although no formal agreement as to State was executed until September 20, 1944. Petitioner, as general manager, was employed by the partners to buy and book film for the two theatres and to consult with and advise them about their operations. Willis Vance's duties required about an hour's time per day. In addition to petitioner, each theatre had a house manager who opened and closed it each day, hired and fired the help, and banked the daily receipts.
Mayme C. Vance and Esther C. Bein employed an accountant who specialized in theatre accounts to take care of every thing in connection with the office routine of the partnership during 1943 and 1944. Their accountant kept the bank books and the check books. He balanced the box office receipts weekly and verified the bank balances. He prepared the weekly reports covering each week's operations, which were submitted to them. Bank statements and invoices were mailed to him. After the invoices were approved he prepared the checks which petitioner signed as general manager. He also prepared the checks for the weekly and monthly distributions to the partners and prepared the partnership returns for 1943 and 1944 and the individual income tax returns for Mayme C. Vance for 1943 and 1944. Mayme C. Vance never drew a check on either of the partnership accounts.
Prior to December 30, 1942, petitioner received one-half of the profits of each of the theatres and devoted 90 per cent of his time to their operation. During 1943 and 1944 petitioner received none of the profits from the operation of the two theatres. Prior to December 30, 1942, petitioner and his partner, William S. Bein, consulted with each other about their operation of the theatres, but no such consultations were had after they transferred their entire interests in the two theatres in 1942.
After December 30, 1942, petitioner continued to pay the household bills and living expenses of his family, as he had done prior thereto. Mayme C. Vance deposited her distributive share of the partnership's earnings in her individual bank account. Petitioner could not withdraw money from his wife's bank account. During the taxable years petitioner individually borrowed substantial sums in connection with his promotions. The Stadium promotion failed, leaving petitioner with undeveloped downtown property which carries a burdensome mortgage of $108,000. Petitioner alone signed the mortgage note; his wife is not obligated thereon.
On her income tax returns for 1943 and 1944 petitioner's wife reported her distributive share of partnership earnings in the respective amounts of $15,893.09 and $14,241.96, which amounts were her distributive shares as reported on the partnership returns. Neither amount was reported as income by petitioner on his returns. No part of such earnings for either year is attributable or taxable to the petitioner. Such earnings were derived from the capital contributed by Mayme C. Vance to the partnership of Ohio and State theatres.
In determining the deficiencies herein respondent included in petitioner's taxable income for each year the distributive share of partnership earnings received by his wife.
OPINION.
ARNOLD, Judge:
Respondent's theory is that the partnership formed in 1938 by Willis H. Vance and William S. Bein continued to operate the theatres during the taxable years. He contends that petitioner had so organized, built up, and established the two theatres by 1943 and 1944, that he did not need to devote the time to their operation that he formerly gave them. He contends that petitioner, as general manager, made all withdrawals from the partnership bank accounts during the taxable years. He contends that neither of the wives contributed capital originating with her or rendered managerial or any other services in operating the partnership business, and that William S. Bein at no time contributed other than capital to the enterprise.
Petitioner's theory of the case is that the original partnership, composed of the husbands, was dissolved in December, 1942, and was succeeded by a new partnership, composed of the wives. It is his contention that he made a gift of his entire interest in both theatres on December 30, 1942, to his wife, that his partner did likewise, that the wives formed a partnership venture of their own, to which each contributed, as capital, an undivided 50 per cent interest in the Ohio and State theatres, and operated the theatres themselves through their employees, that petitioner relinquished control over the partnership assets and was but an employee of the new partnership, not a partner, and that any income subsequently produced therefrom was not attributable or taxable to him.
The first question to be determined is whether a bona fide gift of income-producing property was made by petitioner to his wife in December, 1942. If the gift was bona fide, then under the facts and circumstances of this case all the rights and incidents of full and complete ownership vested in the donee, including the right to the income produced by such property. These principles are so fundamental that citation of authority is deemed unnecessary.
Our findings show that failures in his promotions had seriously embarrassed petitioner and his family prior to 1942. After 1938 he had again established himself in the moving picture theatre business, but his various promotional schemes made his wife apprehensive of the family's financial security. The testimony is uncontradicted that the gift was made to secure his family against want, in view of his contemplated future borrowings for promotional purposes. Petitioner had overextended himself on several previous promotions and he and his wife had discussed his promotions in the light of the financial security of the family. The assets transferred had proved profitable investments in prior years. The profits therefrom would assure his family against want. His attorney advised him to protect his family by making the gift. Petitioner's intention to make the gift can not therefore be doubted.
The steps that petitioner took to complete the gift are illuminating. He and his coowner brought about the dissolution of the Ohio corporation. Petitioner then assigned all his right, title, and interest in the corporate assets to his wife, and the corporation that was being dissolved assigned its lease in the theatre property to Mayme C. Vance and Esther C. Bein. By these acts petitioner divested himself completely of all of his proprietary interest in the Ohio Theatre, its business, and its assets.
Petitioner's steps with respect to divesting himself of all interest in the State Theatre took a different course because of the formal requirements of Kentucky law with respect to dissolving corporations, and because of the fact that the stock certificates evidencing his ownership could not be found after a diligent search. Several witnesses testified to attempts to locate the certificates without success. In this situation petitioner assigned all his stock interest (50 per cent) to his wife by written instrument executed on December 30, 1942. Mayme C. Vance and Esther C. Bein dissolved the Kentucky corporation, as sole stockholders, but they operated the State Theatre during the taxable years as partners within the meaning of section 3797(a)(2), Internal Revenue Code.
SEC. 3797, DEFINITIONS.(a) When used in this title, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof—(2) PARTNERSHIP AND PARTNER.— The term ‘partnership‘ includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation; and the term ‘partner‘ includes a member in such a syndicate, group, pool, joint venture, or organization.
The manner in which the theatres were operated during 1943 and 1944 shows that bona fide gifts were made by petitioner to his wife in December, 1942. Prior thereto petitioner had devoted 90 per cent of his time to managing the theatres, in which he had a proprietary interest. After he disposed of his proprietary interest petitioner devoted only about an hour each day to the theatres, and for his services he received compensation the same as any other employee. Most of the duties that petitioner performed in and prior to 1942 were handled during the taxable years by employees. The new partners employed an accountant, who handled all the office routine. They employed a house manager for each theatre, who opened and closed it, hired the employees, banked the daily receipts, and otherwise served the employer. They employed petitioner to book and buy the films shown at the theatres and to oversee generally the operation. While the partners consulted with Vance and received his advice on business matters, they could terminate his employment at the end of any year and under certain circumstances with only fifteen days' notice. This was a definite departure from petitioner's conduct of the business when he had unlimited dominion and control as managing partner and co-owner.
After Vance and Bein disposed of their proprietary interests in the theatres, they dissolved their partnership. Respondent's theory denies this, but he does not contend that either Mayme or Esther was brought into the 19438 partnership. The evidence shows and we have found that neither husband nor wife was related by blood or marriage to the other husband or wife. This case, therefore, does not involve a family partnership. Nor does respondent so contend. His theory is that the husbands continued to operate the theatres during the taxable years regardless of the fact that they no longer owned any interests or rights in the theatres or the income-producing assets.
The second question, therefore, is whether Mayme's distributive share of partnership income should be taxed to petitioner on the theory that he exercised such dominion, power, and control over the business after the gift as to make him in fact the earner of the income. Respondent contends that this question ‘is answered and controlled by the principles enunciated in ‘ Commissioner v. Culbertson (1949), 337 U.S. 733; Commissioner v. Tower (1946), 327 U.S. 280; Lusthaus v. J. M. Henson (1948), 10 T.C. 491; reversed, Henson v. Commissioner (1949, CA-5), 174 Fed.(2d) 846. Although respondent relies upon the principles enunciated by the Supreme Court in family partnership cases, he concedes that ‘This case does not present the usual pattern of family partnership cases * * * . ‘ Nevertheless, he says ‘the difference in pattern in this cause does not change the legal effect * * * . ‘
In the Culbertson, Tower, and Lusthaus cases, supra, the taxpayer was a partner and sought to bring a member of his family into the partnership. In each case the taxpayer had or retained a proprietary right and ownership in the partnership business and assets. Here, the petitioner disposed of all his proprietary right and his ownership in the partnership's business and assets, and dissolved the partnership of which he was a member. Mayme Vance was never a member of that partnership. He was never a member of the 1943 partnership. He never had any right to the profits of that partnership. He never exercised any dominion or control over its income or its assets as an owner thereof. Mayme and Esther determined, as the sole partners, how the profits or losses of the 1943 partnership would be shared. The facts show that Mayme received one-half of the partnership profits each taxable year in accordance with the partnership agreement. The facts show that she deposited her share of the profits in her individual bank account, which she used for her own purposes. Petitioner had no authority to draw on this account. Mayme did not use her personal funds to pay household and living expenses. Petitioner paid these expenses during the taxable years, as he had prior thereto. Mayme reported her distributive share of the partnership profits as her income and paid the tax due thereon from her own bank account. Petitioner never exercised or had any dominion or control over his wife's share of the partnership profits, nor was he liable for any losses of the 1943 partnership.
In Robert E. Werner, 7 T.C. 39, Albert Nelson, 6 T.C. 764, and our Henson case, supra, the transfer of property to his wife, or the listing of property in her name, was followed by such dominion, power, and control over the business after the transfer that the husband was held to be the earner of the income. Vance's authority over the business after the gift was solely the result of his employment, and not as an owner, direct or indirect.
Prior to December 30, 1942, petitioner's dominion and control over the property and the income therefrom was an absolute right which adheres in a valid and legal title. As one of the owners he devoted 90 per cent of his time to operating the business. After December 30, 1942, and during the taxable years petitioner's right of dominion and control rested entirely upon the authority conferred upon him as an employee in his employment contract. As an employee he devoted about an hour a day to the business and received a stated salary for services rendered. The continuance of his contract was solely at the pleasure of his employer. No right of dominion or control existed in petitioner except as an employee. Any income produced by him as an employee belonged to his employer, and it was his employer that had the right of dominion and control and the right to receive any income produced. There is nothing in the Earl,
Lucas v. Earl, 281 U.S. 111.
Helvering v. Clifford, 309 U.S. 331.
Supra.
Supra.
Respondent has attempted to build up Vance's dominion and control, as an employee, to the point where he should be taxed as the person who produced the income. It is urged that this case is ‘on all fours‘ with J. M. Henson, 10 T.C. 491, and that we should follow our decision therein. The difficulty with this argument, which respondent recognizes, is that the Henson case was reversed, Henson v. Commissioner (CA-5), 174 Fed.(2d) 846. Furthermore, the decisions of the Court of Appeals for the Sixth Circuit, which would review this decision on appeal, are against the respondent. See Kent v. Commissioner, 170 Fed.(2d) 131, and Lawton v. Commissioner, 164 Fed. (2d) 380. Like results have been reached in this Court and in the other Courts of Appeals under varying circumstances, Clifford R. Allen, Jr., 12 T.C. 227; Arthur A. Byerlein, 13 T.C. 1085; Greenberger v. Commissioner (CA-7), 177 Fed.(2d) 990; Durwood v. Commissioner (CA-8), 159 Fed.(2d) 400; and Harris v. Commissioner (CA-9), 175 Fed.(2d) 444.
In Commissioner v. Culbertson, 337 U.S. 733, 742, the Supreme Court stated that the question in family partnership cases is whether, considering all the facts, ‘the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.‘ Paraphrasing some of the facts the Supreme Court considered, we find here that Mayme C. Vance and Esther C. Bein had a written partnership agreement, they conducted their business in accordance with the terms of that agreement, their testimony and the testimony of disinterested parties show that they conducted the business, their relationship to each other and to third parties was that of partners, each of them contributed one-half of the capital, they conducted the business through their managers and accountant, each drew her pro rata share of the profits and used it as she wished without control or restraint by her husband, and they really and truly intended to enter into a business partnership. Since they were the only partners in the business, it can not be said that petitioner was a partner therein or controlled and dominated the business so that he is taxable under section 22(a), Internal Revenue Code, on his wife's distributive share.
Recent decisions by this Court where the income has been taxed to the person who earned it are distinguishable. Louis Visintainer, 13 T.C. 805, involved a case where there was no partnership agreement, no arrangement for joint venture, and the effect, if not the design, was held to be nothing more than a reallocation of income in the family group. In Lyman A. Stanton, 14 T.C. 217, partners conveyed interests to trusts for the benefit of members of their immediate family, retaining as sole trustee full and unlimited control and dominion over the partnership interest conveyed in trust. We held the grantors liable. No question involving trust income exists in the present case. Elwin S. Bentley, 14 T.C. 228, involved a plan or device suggested by tax counsel whereby wives would form partnership and employ husbands to operate an engineering business. We held that there was no real purpose to create a partnership and that the plan was simply a scheme devised by tax counsel to avoid the incidence of the taxing statutes. No such plan or scheme can be charged to this petitioner, nor was there any absence of intent on the part of his wife to risk her capital in an entirely new, separate, and distinct economic unit.
In Wade Allen, 6 T.C. 899, the taxpayer and his wife were estranged. They agreed that she should receive the earnings of one of his theatres for the support of herself and their minor child. We held that he was the responsible operator of the theater and taxed its earnings to him. We pointed out, inter alia, that the wife contributed no services or capital to the business and used the income to discharge the legal obligations of the husband. Here, Mayme C. Vance contributed half of the capital, operated the theatres with employed personnel, and used none of the income to discharge legal obligations of her husband.
In view of the foregoing, we hold that petitioner is not taxable upon his wife's distributive share of partnership income, but, since other adjustments were made by the respondent in determining the deficiency,
Decision will be entered under Rule 50.
Reviewed by the Court.
OPPER, J., dissenting: It is difficult to formulate a dissent in the field of intra-family assignment cases such as this where so much depends upon the hearer of the evidence. Commissioner v. Culbertson, 337 U.S. 733. Yet unless some effort is made to reconcile results in situations where evidentiary facts are similar, nothing but a quicksand of unreliable precedents can result.
No fact in this case serves to distinguish it from such decisions as J. M. Henson, 10 T.C. 491; Robert E. Werner, 7 T.C. 39; and Albert Nelson, 6 T.C. 764. It is true that the Henson case was reversed (C.A., 5th cIr.), 174 Fed.(2d) 846, but James Yiannias, a memorandum opinion decided on the authority of the Henson, Werner, and Nelson cases, was recently affirmed in a post-Culbertson opinion by still another circuit (C.A., 8th Cir.), 180 Fed.(2d) 115. And see Louis Visintainer, 13 T.C. 805; Elwin S. Bentley, 14 T.C. 228. The Yiannias case is not even mentioned in the present opinion. Certainly no effort is made to distinguish it, which would indeed be difficult, since the facts are so similar that even the type of business involved was the same. See also Wade Allen, 6 T.C. 899. The suggestion is that because this proceeding will be reviewed by a circuit which has several times reversed the Tax Court on cases in this field, the present result is justified. I hope we are not creating a principle which will be applied by the Tax Court with varying results depending upon the circuit to which the case will go on appeal.
Since it seems to me the present opinion announces as a rule of law that the mere signing of documents which purport to change the owner-operator of a business into an employee is sufficient to preclude our further penetration, and since that rule seems to me unquestionably erroneous under all the cases from Lucas v. Earl through Culbertson, I must respectfully dissent.