134 F.2d 319 | 5th Cir. | 1943
Louise P. Lucas petitions for review of a decision of the Board of Tax Appeals sustaining the Commissioner’s determination of income tax deficiencies for the years 1936 and 1937 of $234.60 and $410.38, respectively. The taxpayer and her husband reside in Louisiana, a community property state. The income in question was from the wife’s separate property located in Missouri, and was reported for income tax purposes as income of the community of acquets and gains. The Commissioner contends that the income should be taxed in full as the separate property of the wife.
Under Louisiana law, if the separate property of the wife is administered and enjoyed by the husband, gains and profits from it “fall into the community”. La.Civ.Code, Arts. 2386, 2402; Succession of Andrus, 131 La. 940, 60 So. 623. If the wife’s paraphemai property is not administered by her “separate and alone”, it is considered to he under the management of the husband. La.Civ.Code, Arts. 2385, 2387; Breaux v. LeBlanc, 16 La.Ann. 145; Dart’s Louisiana Digest, Marriage, Sec. 101. The controlling question stated by the Board in its decision, and urged here by the petitioner, is whether or not the separate property of Mrs. Lucas “was under the administration of her husband ?”
The plain and unambiguous terms of the power of attorney, and the uninterrupted management of the agent acting thereunder, shows that the property was in fact managed by the agent of the wife. This showing clearly, completely, and fully answers the question in this case, and overturns and refutes any presumption that the property was under the administration and management of the husband. See Howard v. United States, 5 Cir., 125 F.2d 986, which discusses statutory presumptions; and compare Commissioner v. Skaggs, 5 Cir., 122 F.2d 721, which deals with income from real property.
The petitioner failed to prove that her property was administered by her husband, and that the income was the property of the community. The Board properly sustained the deficiency determinations of the Commissioner.
Affirmed.