Roberts v. Commissioner of Internal Revenue, 44 F.2d 168 (5th Cir. 1930)

Levi O'Steen and J. C. Murphy, both of Atlanta, Ga. (D. J. Gantt and Sam L. Olive, both of Atlanta, Ga., on the brief), for petitioner.

C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Shelby S. Faulkner, Sp. Atty. Bureau of Internal Revenue, both of Washington, D. C., G. A. Youngquist, Asst. Atty. Gen., and Helen R. Carloss and Sewall Key, Sp. Assts. to Atty. Gen. (Allin H. Pierce, Sp. Atty. Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent.

Before BRYAN and FOSTER, Circuit Judges, and SIBLEY, District Judge.

PER CURIAM.

This is a petition to review a decision of the Board of Tax Appeals which held petitioner liable for income taxes, during the years 1920 and 1921, on commissions received by him as compensation for services in collecting delinquent state and county taxes. Those services were rendered under contracts which petitioner had with the state tax commissioner of Georgia and boards of commissioners of several counties of Georgia. The contract with the state tax commissioner was authorized by act of the Legislature, Georgia Laws of 1919, page 55; and it will be assumed that the contracts with the counties were also authorized by that act. Employment under each contract was subject to be terminated on short notice. Petitioner claims that his income was exempt from federal taxation under the Revenue Act of 1926, § 1211 (26 USCA § 1065b) on the ground that he was an officer or employee of the state and political subdivisions thereof; but, under the decisions of the Supreme Court in Metcalf v. Mitchell, 269 U.S. 514, 46 S. Ct. 172, 70 L. Ed. 384, and Lucas v. Howard, 280 U.S. 526, 50 S. Ct. 87, 74 L. Ed. 593, he must be held to have been an independent contractor, and not entitled to claim exemption because of the nature of his services.

The petition for review is denied.