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Cherie Trojak
This suit is for the recovery of $1,348.50, paid under protest as the result of a deficiency assessment on plaintiff's income return for 1927. Plaintiff and his wife lived under the regime of the matrimonial community established by the Louisiana law, and accordingly made separate returns, each for one-half of the total income of the year in question. They were married in this state, and have continued to reside here at all times. All of their revenues were from community sources. The government refused to accept payment upon the basis claimed, but required the plaintiff to pay the taxes upon the whole as his individual income, with the result that the amount was increased by the sum which he now seeks to recover.
The jury has been waived and the matter submitted upon an agreed statement of facts, which now presents for decision only a question of law; that is, as to whether under the law of Louisiana the plaintiff and his wife were joint owners of the income, and entitled to make returns as such for the taxes levied by the Revenue Act of 1926 (44 Stat. 9). It therefore becomes necessary to review the statutory provisions of the state as well as the interpretation placed thereon by its court of last resort to determine the extent of the interest of the wife in the community property and income. These are to be found in the Louisiana Civil Code, arts. 2399 to 2437, inclusive, which primarily have their origin in the Spanish law. I quote some of the most pertinent provisions as follows:
"Art. 2402. This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, * * * of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; `provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.' (As amended and re-enacted by Act 68 of 1902.)"
"Art. 2404. The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife. He can make no conveyance inter vivos, by a gratuitous title, of the immovables of the community, nor of the whole, or of a quota of the movables, unless it be for the establishment of the children of the marriage.
"But if it should be proved that the husband has sold the common property, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the property, on her satisfactorily proving the fraud."
"Art. 2403. In the same manner, the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects."
"Art. 2406. The effects which compose the partnership or community of gains, are divided into two equal portions between the *644 husband and the wife, or between their heirs, at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by husband and wife conjointly, although what has been thus brought in marriage, by either the husband or the wife, be more considerable than what has been brought by the other, or even although one of the two did not bring anything at all."
"Art. 2386. When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil or the result of labor, belong to the conjugal partnership, if there exists a community of gains."
It is thus seen that, in the absence of a prenuptial agreement that there shall be no community, the law conclusively presumes its existence, and not only does the property acquired through the joint and individual efforts of the spouses, regardless of the name in which it is taken, thereafter fall into the partnership, but also all profits and revenues arising from whatever may be brought into the marriage or may be received by either during its existence, except such as comes to the wife from her paraphernal property separately administered by her. While the relation is referred to as a partnership, it does not possess all of the characteristics of a commercial firm, but has some features resembling that status. So long as there exists no occasion for invoking by the wife of certain remedial provisions for her protection, the husband manages and disposes of the community property and income without having to obtain the consent of his wife, subject to the limitations hereinafter discussed. However, he can "make no conveyance inter vivos by a gratuitous title of the immovables, nor of a whole or a quota of the movables, unless it be for the establishment of the children of the marriage. Nevertheless, he may dispose of the movables by a gratuitous and particular title to the benefit of all persons." However, if he does so in fraud of the wife, she may at his death "have her action" against his heirs for reimbursement of her half thereof.
When the marriage is dissolved, either by death or divorce, the property, consisting both of what has been earned and acquired during its existence and of the profits from their separate estates, save those which arise from the paraphernal property of the wife separately administered by her, is divided into two equal parts, which vests, either in the heirs of the deceased and the survivor, respectively, or the spouses, as the case may be, in absolute ownership. It is an interest of which the wife and her heirs cannot be deprived by the husband. But they are protected from his mismanagement in that, if the community is involved, they may accept the same under the law with what is called "benefit of inventory." This means that there must be an administration of the estate under the probate powers of the court, resulting in a marshaling of the property or assets and payment of the community debts, and a distribution of the residue, if any, one-half to each of the beneficial interests. In this way the wife or her heirs escape personal liability for the debts of the community, in event it proves insolvent. The Supreme Court of Louisiana has construed these provisions of the Code as vesting in the wife during marriage the title to one-half of the community property and not as constituting a mere expectancy. See Phillips v. Phillips, 160 La. 813, 107 So. 584, and authorities therein reviewed and analyzed. It is there pointed out that the interest does not come to the wife solely as a result of the dissolution of the marriage, but exists at all times, subject only to the administration of the husband; that it is not in the nature of an inheritance, and neither she nor her heirs can be deprived thereof by any act of the husband. In Dixon v. Dixon's Executors, 4 La. 191, 23 Am. Dec. 478, the Supreme Court of the state, through Justice Porter, pointed out the difference between the views expressed by the French commentators as to the nature of the wife's interest in community property and the law of Louisiana, and in doing so said:
"But it is not for us to deny, or even doubt the correctness of their conclusions in relation to the law of France. It is sufficient that it is not the same as ours, and that the difference is marked on this very point. The Napoleon Code does not contain the provision found in the Code of Louisiana, that if the husband alienates, during coverture, the acquests and gains, with the intention of injuring the wife, she may, at his decease, bring an action to set aside the alienation. The laws of Spain seem to have furnished that doctrine to the juris-consults who prepared our code. And the exercise of such a right, does appear to us utterly opposed to the principle, that the wife has no interest in the property, until the community is dissolved; for if she has not, how can she maintain an *645 action to set aside the alienation? Who ever heard of a suit, the sole basis of which was, that the hopes and expectations of the plaintiff had been disappointed and defeated by the acts of the defendant?"
See, also, Theall v. Theall, 7 La. 226, 26 Am. Dec. 501, wherein it was held that the will of the husband conveying "one-half of all (his property) to my wife" transmitted only one-half of his half of the community, and not the other half, for the reason that the wife took the latter in her own right, and hence could not be conveyed by the husband, who did not own it. To the same effect see Ramsey v. Beck, 151 La. 190, 91 So. 674.
The state Supreme Court has also consistently held that the surviving spouse does not have to pay the state inheritance tax upon the half of the community property falling to her at its dissolution. Succession of Marsal, 118 La. 212, 42 So. 778. On the other hand, where the husband or wife wills his or her half of the community to the survivor, the inheritance tax is due as in case of any other legacy. Succession of May, 120 La. 692, 45 So. 551; Succession of Popp, 146 La. 464, 83 So. 765, 26 A. L. R. 1446. The debts incurred during marriage must be paid out of community assets, but those of either spouse contracted before marriage have to be borne by their separate interests. If the latter be discharged with community funds, then, on the dissolution of the community, the one for whose benefit the payment was made must account therefor or be charged with the same in the settlement of the partnership. Childers v. Johnson, 6 La. Ann. 634.
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