O'Bryan

The Tax Court determined a deficiency in income tax against taxpayer for the years 1936, 1937, 1938, and 1939 on the theory that his earnings subsequent to a separation agreement between him and his wife were his separate property and wholly taxable to him rather than community property and taxable one-half to each spouse. Taxpayer petitions for a review of the Tax Court decision.

Taxpayer was married in 1919. Later, at a time when he and his wife were living in New York, they separated. In 1932 he became domiciled in California, where he has resided ever since. His wife has never lived in California.

Husband and wife entered into a “Separation Agreement” in 1935 or 1936 (the date is not disputed herein). The document opens with two recitals to the effect that the parties have been living separate and *458 apart and that the husband wishes to provide for the maintenance and support of his wife during her lifetime. There follows the paragraph: “1. The parties shall live separate and apart and each be free from interference, authority and control by the other as fully as if he or she were sole and unmarried, and each may conduct, carry on and engage in any employment, business or…