Funk v. Commissioner , 14 T.C. 198 ( 1950 )

Eleanor M. Funk, Petitioner, v. Commissioner of Internal Revenue, Respondent

Funk v. Commissioner

Docket Nos. 5243, 5244

United States Tax Court

14 T.C. 198; 1950 U.S. Tax Ct. LEXIS 277;

February 14, 1950, Promulgated

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">*277 Decisions will be entered for the respondent.

Where the sole trustee of trusts had broad discretionary powers to distribute trust income annually to herself or her husband, the grantor of the trusts, which power was limited only by her sole judgment with respect to her husband's needs, the trustee, the petitioner in this proceeding, had the burden of proving what part of trust income she could have been compelled to pay her husband, and how much was not within her absolute control. Upon the evidence, comprising an original stipulation and further evidence admitted upon further consideration of the proceeding after remandment by the Circuit Court of Appeals for the Third Circuit, held, that the petitioner failed to meet the burden of proof, and, in the absence of evidence to overcome the respondent's determination that the trusts' income was within her absolute control, the power given to the trustee, the petitioner, was too little fettered to give her less than complete command over the trusts' income for purposes of taxation under section 22 (a), I. R. C.Mallinckrodt v. Nunan, 146 Fed. (2d) 1; Stix v. Commissioner, 152 Fed. (2d) 562.">*278

J. S. Y. Ivins, Esq., for the petitioner.

M. B. Leming, Esq., John W. Smith, Esq., and John T. Rogers, Esq., for the respondent.

Harron, Judge. Disney, J., dissenting. Arundell, Van Fossan, and Leech, JJ., agree with this dissent.

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HARRON

">*199 The respondent has determined deficiencies in the petitioner's income tax liability as follows:

Docket	Year	Deficiency
Docket No. 5243	1938	$ 1,346.91
Docket No. 5243	1939	18,109.65
Docket No. 5243	1940	25,154.24
Docket No. 5244	1941	32,583.62
Total		77,194.42

The deficiencies">*279 in income tax result from the respondent's determination that Eleanor M. Funk is taxable on the aggregate net income of four trusts of which she is trustee and also a beneficiary. The trusts were created by Wilfred J. Funk, petitioner's husband, on December 29, 1936. The aggregate net income of the four trusts for the taxable years, which has been included in the taxable income of the petitioner, is as follows:

1938	$ 13,600
1939	48,000
1940	49,600
1941	53,600
Total	$ 164,800

The notice of the deficiencies for the years 1938 and 1939 was mailed to the petitioner within five years after the returns for 1938 and 1939 were filed, but more that three years after the returns for 1938 and 1939 were filed. The petitioner agrees that if all of the net income of the four trusts in question for the years 1938 and 1939 is includible in her gross income for 1938 and 1939, then she understated her correct gross income in each of those years by more than 25 per cent, and, therefore, that the notice of deficiencies in those years was timely under section 275 (c) of the Internal Revenue Code.

">*200 The only question presented is whether the petitioner is taxable on all ">*280 of the net income of four trusts for the years 1938 to 1941, both years inclusive.

The petitioner filed her income tax returns with the collector for the fifth district of New Jersey.

This proceeding was originally submitted under a stipulation of agreed facts, with thirteen exhibits, and the question presented was decided under a findings of fact and opinion which was promulgated on September 27, 1946. See Eleanor M. Funk, 7 T.C. 890. The petitioner appealed from the decision of this Court to the Circuit Court of Appeals for the Third Circuit, which remanded the proceeding to this Court with directions for further proceedings not inconsistent with its opinion. See Funk v. Commissioner, 163 Fed. (2d) 796. After remandment of this proceeding to this Court, further evidence was offered under stipulation of the parties, and was admitted. From all of the record of this proceeding as it is now constituted, we make the following findings of fact, and give further consideration to the question presented.

FINDINGS OF FACT.

Certain facts have been stipulated, and those facts are found as facts.

The petitioner, Eleanor M. ">*281 Funk, is the wife of Wilfred J. Funk, to whom she was married in 1915. Petitioner and her husband reside in Montclair, New Jersey. They are the parents of three children -- Joan, Wilfred, Jr., and Peter.

Since at least 1929, the chief business interest of Wilfred J. Funk has been the Funk & Wagnalls Co., of which he has been either president or vice president.

This proceeding relates to four trusts, known as trust A, trust B, trust C, and trust D, which Wilfred J. Funk created on December 29, 1936, under written trust indentures. Since their creation, Eleanor M. Funk has been trustee of these trusts, and the corpus of each trust has consisted solely of 125 shares of class C stock of a corporation known as Erwin Park, Inc., plus such accumulations of the annual trust income as the trustee let accumulate and become an addition to the trust corpus. Since their creation, the income of each trust has consisted solely of dividends paid on the class C stock of Erwin Park, Inc.

Wilfred J. Funk held in his own name at one time shares of stock of the corporation, Funk & Wagnalls Co. He made transfers of some of this stock at various times, as follows:

(1) On April 9, 1929, he transferred">*282 10,345 shares of Funk & Wagnalls stock, in trust, to himself as trustee, for the benefit of Eleanor M. Funk, the income to be paid to her for life, and the corpus ">*201 to go, upon her death, to such persons as she should appoint by will or deed, the power of appointment being limited to the class of persons who would be entitled to share in her estate according to the New Jersey laws of descent and distribution in the event that she died intestate.

(2) At some time prior to April 16, 1929, Wilfred J. Funk gave 10,345 shares of Funk & Wagnalls stock to Eleanor M. Funk.

(3) On or about March 5, 1929, Wilfred J. Funk transferred 17,982 shares of Funk & Wagnalls stock to the corporation known as Erwin Park, Inc., which he had caused to be organized on March 1, 1929. The above block of Funk & Wagnalls stock was transferred to Erwin Park, Inc., in exchange for capital stock, and on the books of Erwin Park, Inc., the Funk & Wagnalls stock was carried at the value, as of March 5, 1929, of $ 250 per share, or a total value of $ 4,495,500.

When Erwin Park, Inc., was organized, Wilfred J. Funk subscribed for all of its capital stock, consisting of class A and class B stock, and 10,000 ">*283 shares of class A stock were issued to him in exchange for securities which he transferred to the corporation.

On April 5, 1929, Wilfred J. Funk created six trusts, known as trust No. 1, No. 2, No. 3, No. 4, No. 5, and No. 6.

The beneficiaries of trusts 1, 2, and 3 were the children, Wilfred, Jr., Peter, and Joan. Wilfred J. Funk named himself the trustee of these trusts. He transferred to these trusts a total of 4,998 shares of class A stock of Erwin Park, Inc., or 1,666 shares to each trust. These trusts continued in existence, with Wilfred J. Funk acting as the trustee, and having as their corpus class A stock of Erwin Park, Inc., until 1939, when they were revoked.

Wilfred J. Funk named Eleanor M. Funk the trustee of trusts 4, 5, and 6. He transferred, in April, 1929, 4,998 shares of class A stock of Erwin Park to these trusts -- 1,666 shares to each trust. The beneficiaries of these trusts, in numerical order, were Wilfred, Jr., Peter, and Joan. On December 29, 1936, after a recapitalization of Erwin Park, Wilfred J. Funk revoked trusts 4, 5, and 6, and Eleanor M. Funk transferred the trust property back to him.

On December 29, 1936, the same day that the aforesaid trusts">*284 were revoked, Wilfred J. Funk created four new trusts -- trusts A, B, C, and D (the trusts in question), naming Eleanor M. Funk the trustee of each trust.

On April 16, 1929, Eleanor M. Funk created a trust to which she transferred the 10,345 shares of Funk & Wagnalls stock which she had received from Wilfred J. Funk. She named herself the trustee of this trust, and thereafter held the aforesaid stock as trustee. This trust was for the benefit of Wilfred J. Funk, with income payable to him for life, and corpus to go to his appointees under his will or deed, limited to the class of persons who would inherit from him if he died ">*202 intestate, according to the New Jersey laws of descent and distribution. The trusts of April 9, 1929 (referred to above), and April 16, 1929, created by Wilfred J. Funk and Eleanor M. Funk, respectively, were reciprocal trusts.

The facts relating to Erwin Park, Inc., are as follows: Erwin Park, Inc., a Delaware corporation, was organized on March 1, 1929. It became the personal holding company of Wilfred J. Funk. Its address is the address of the residence of Wilfred J. Funk. Under its original certificate of incorporation its total authorized ">*285 capital stock was 20,000 shares, of no par value, equally divided between class A and class B stock, with voting power vested exclusively in the holders of class B stock. Wilfred J. Funk is the only person who has ever held any of the class B voting stock. Wilfred J. Funk, Eleanor M. Funk, and John D. Murphy of Murphy, Lanier & Quinn, accountants and tax consultants, have served, at all times, as the president, treasurer, and secretary, respectively, of Erwin Park, and also as its directors. Immediately after the incorporation of Erwin Park, Wilfred J. Funk transferred a substantial part of his property, including 17,982 shares of Funk & Wagnalls stock, and other securities, to Erwin Park, in exchange for all of its capital stock. The property transferred to and received by Erwin Park was set up on its books at a value of $ 6,603,439.32.

At special meetings of the directors and stockholders of Erwin Park on December 23, 1936, a resolution was adopted to amend the corporation's charter to effect a recapitalization so as to change the authorized capital stock to 500 shares of class A stock, 1,000 shares of class B stock, and 500 shares of class C stock, each share to have a par value">*286 of $ 100, and only the class B stock to have voting rights. Also, dividends could be declared and paid upon such classes of stock within the absolute discretion of the directors. Following the recapitalization as thus authorized, the holders of old stock exchanged it for new stock, and thereafter all of the new class A stock was held by Wilfred J. Funk as trustee of trusts 1, 2, and 3; and all of the class C stock was held by Eleanor M. Funk as trustee of trusts A, B, C, and D; and all of the voting stock, the class B stock, was held by Wilfred J. Funk. Also, on December 30, 1936, the directors declared a dividend of $ 160 per share on the class C stock, or a total dividend of $ 80,000, which was paid to Eleanor M. Funk, as trustee of trusts A, B, C, and D.

On December 23, 1937, the directors and stockholders of Erwin Park adopted resolutions to again amend the charter of Erwin Park with respect to the dividend rights of the three classes of stock. This amendment continued the directors' discretion as to the time and ">*203 amount of dividend payments, but provided that of all dividends paid during any calendar year, 5 per cent be paid on class A stock, 15 per cent on class">*287 B stock, and 80 per cent on class C stock. In case of liquidation or dissolution, the holders of all classes of stock are to share equally in the corporation's assets.

In 1936, and each year thereafter, Erwin Park declared dividends of virtually all its income for the year. According to the income tax returns of Erwin Park for 1936, 1937, 1938, 1939, and 1940, the net income of the corporation and the total amount of dividends paid on its stock were as follows:

	Net	Dividends
Year	income	paid
1936	$ 82,756	$ 80,000
1937	195,706	191,000
1938	17,518	17,000
1939	55,758	60,000
1940	59,996	62,000
Total		410,000

During the years 1936 to 1940 Erwin Park paid dividends on the new class A and class B stock (held by Wilfred J. Funk), and on the new class C stock, held by Eleanor M. Funk, trustee of trusts A, B, C, and D, as follows:

	Class A	Class B	Class C
Year	stock	stock	stock
1936	None	None	$ 80,000.00
1937	$ 9,250.00	$ 27,750.00	* 154,000.00
1938	850.00	2,550.00	13,600.00
1939	3,000.00	9,000.00	48,000.00
1940	3,100.00	9,300.00	49,600.00
Total	16,200.00	48,600.00	345,200.00

">*288 During the years 1937 to 1940, inclusive, Wilfred J. Funk received from the Eleanor M. Funk trust of April 16, 1929; and Eleanor M. Funk received from the Wilfred J. Funk trust of April 9, 1929, the reciprocal trusts, income as follows:

	W. J. Funk,	E. M. Funk,
Year	beneficiary	beneficiary
1937	$ 72,415.00	$ 72,415.00
1938	0	0
1939	15,517.50	15,517.50
1940	15,517.50	15,517.50

According to the individual income tax returns of Wilfred J. Funk ">*204 and Eleanor M. Funk for the years 1937 to 1940, inclusive, the gross income of each was as follows:

	W. J. Funk		E. M. Funk
Year	Gross	Interst,	Gross	Interest,
	income,	Govt.	income,	Govt.
	line 12 of	obligs., *	line 12 of	obligs., *
	return	sch. B	return	sch. B
1937	$ 129,643.07	$ 32,424.84	$ 83,695.63	$ 15,475.00
1938	20,839.16	30,562.34	6,447.55	11,059.85
1939	55,623.53	28,281.41	33,154.46	0
1940	57,357.39	26,162.04	27,061.77	13,100.00

According to the income tax returns of Eleanor M. Funk for 1937 and 1938, schedule B, she owned $ 321,000 of obligations "of a State, Territory, or political subdivision">*289 thereof, or the District of Columbia, or United States possessions."

During the years 1930 through 1937, Wilfred J. Funk withdrew various amounts from Erwin Park, evidenced by notes carried in a notes receivable account of Erwin Park. On December 31, 1940, the total amount of these withdrawals, as shown in the unpaid balance of the notes receivable account, was $ 334,500. In 1931 Eleanor M. Funk withdrew $ 474,568.42 from Erwin Park evidenced by a demand note dated October 15, 1931, with interest at 5 per cent. The balance in the notes receivable account of Erwin Park, Inc., on December 31, 1940, on account of the withdrawals of Wilfred J. and Eleanor M. Funk was $ 809,068.42, and no payments have ever been made on the principal of the notes reflected by the above balance of the account, and no interest has ever been paid thereon. Erwin Park, Inc., has never made any demand for any payment of the principal of or interest on the notes.

Additional facts relating to the creation and the operation of trusts A, B, C, and D, of which the petitioner, Eleanor M. Funk, was the trustee, are as follows:

The trusts created by Wilfred J. Funk on December 29, 1936, known as trusts A, B, C, ">*290 and D, were identical trusts, and the provisions of all of the indentures were the same; they are irrevocable; they will terminate upon the death of Wilfred J. Funk; they are to be administered under the laws of New Jersey. Upon the death of Wilfred J. Funk and the termination of the trusts, the corpus of each trust shall be paid over to such persons as Wilfred J. Funk has appointed by deed or will; or, in default of appointment, to a named child (Wilfred, Jr., or Peter, or Joan), in the instances of three of the trusts, A, B, and C; or, in the instance of trust D, to the three children in equal shares per stirpes; or, finally, to those persons who would inherit from the children under New Jersey law.

">*205 During the terms of the trusts, the trustee, Eleanor M. Funk, is authorized to manage the trusts, pay taxes and expenses annually, and receive the income of the trust property. Also, the trustee is authorized to do the following:

* * * in her discretion to pay all or a part of the net income annually to me, or to herself, in accordance with our respective needs, of which she shall be the sole judge, and to accumulate and add to principal the balance of such income, if ">*291 any.

It was provided in the trust indentures that any income which was accumulated in a trust could not thereafter be distributed by the trustee. Also, all stock dividends and liquidating dividends must be added to principal, but all cash dividends are to be treated as trust income. It was provided, also, that Eleanor M. Funk, as trustee, had the right to appoint, by will or other written instrument, a successor trustee who shall have the same powers as she has. The trustee is given broad powers in the usual management of the trust corpus; the right to register securities held by the trust in her own name; and the power to change investments.

Eleanor M. Funk accepted the trusteeship of the trusts and received the certificates of the class C stock constituting the corpus of each trust. She placed them in her own safe deposit box, to which she alone had access.

On the same day that the four trusts were created, Wilfred J. Funk addressed a letter, dated December 29, 1936, to Eleanor M. Funk, regarding the trusts; and Eleanor M. Funk addressed a letter bearing the same date to him regarding the trusts. The letters are set forth in the margin. ¹

">*292 ">*206 During the years involved in this proceeding, 1938 through 1941, the only securities, or property, held by the four trusts were 500 shares of class C stock of Erwin Park, Inc., the personal holding company of Wilfred J. Funk, in which he held all the voting, or class B stock. The trusts also held some accumulations of income.

On December 30, 1936, four bank accounts were opened in the Chase National Bank, New York City, for each of the four trusts, and Eleanor M. Funk was the only person who could sign checks drawn against the four accounts. The account for trust A was designated "Eleanor M. Funk, Trust A, Eleanor M. Funk, Trustee"; and the accounts for the other three trusts were given like designations.

Wilfred J. Funk created the four trusts largely for the security of Eleanor M. Funk. He had always given consideration to the matter of her security, and to that end had given her gifts since their marriage in 1915. At one time he gave her $ 228,000 and, at another time, the 10,345 shares of Funk & Wagnalls stock; and he had created a trust for her benefit on April 9, 1929. His primary purpose in creating Erwin Park, Inc., was to provide for Eleanor M. Funk and to ">*293 safeguard their respective estates. Tax savings was also a motive for creating Erwin Park, Inc.

Prior to creating trusts A, B, C, and D, Wilfred J. Funk discussed with Murphy, Lanier & Quinn, a firm of accountants and tax consultants, the matter of creating one or four trusts. As far as his purposes were concerned, one trust would have done as well as four. They created four trusts instead of one because there would result some modification in taxes.

The firm of Murphy, Lanier & Quinn, having offices in New York City, for many years has prepared the income tax returns of Wilfred J. Funk, of Erwin Park, Inc., and of trusts A, B, C, and D. John D. Murphy is a senior partner of the firm. He has been the accountant for Erwin Park, Inc., since its organization and, also, he is Wilfred J. Funk's accountant. He is also a director and secretary of Erwin Park, Inc.

Eleanor M. Funk received advice from Murphy, Lanier & Quinn. According to her own estimate, she is not a business woman. Although she is an officer and director of Erwin Park, Inc., she knows very little about its affairs, and whatever she had to do with that corporation she did through Murphy, Lanier & Quinn. She did what">*294 she was told to do by her agents and lawyer. She regarded the firm of Murphy, Lanier & Quinn as her agents. The check books of the four trusts were kept in the office of the Murphy firm.

The administration of the four trusts was handled in the following manner: In each of the years involved in this proceeding, 1938, 1939, 1940, and 1941, dividends on the class C stock of Erwin Park were declared and paid, and the dividends which were payable on each ">*207 block of stock which was held by each trust were paid by a check of Erwin Park made payable to "Eleanor M. Funk, Trustee." The checks were deposited in the accounts of the trusts in the Chase National Bank. No distribution was made by the trustee of any income received by a trust during the year of the receipt thereof, so that in the fiduciary income tax return of each trust for each year the trustee did not deduct any amount as distributed or distributable to a beneficiary, and the trustee reported tax upon the entire income which the trust received during the year. Shortly after January 1 of the succeeding year, the trustee, Eleanor M. Funk, during January and within from eight to twenty days after the first of January, ">*295 would exercise her discretion with respect to making any distribution of the income which the trusts had received in the immediately preceding year. The only persons who received distributions were herself and her husband, and in their separate income tax returns they did not include in their gross income for the years in which they received distributions from the trust, the amounts received.

The total aggregate amounts of the dividends on the class C stock of Erwin Park, Inc., which were received by the four trusts in the taxable years, and the income tax which the trustee paid on such income for each year, were as follows:

Year	Income	Tax
1938	$ 13,600	$ 528.00
1939	48,000	3,636.00
1940	49,600	4,787.20
1941	53,600	* 10,916.00
Total	164,800	19,867.20

Shortly after January 1 of each year, the firm of Murphy, Lanier & Quinn mailed a letter to Eleanor M. Funk, trustee, at her home, in which they advised her of the amount of the income of each trust for the immediately preceding year, after payment of income tax; and they inquired in the letter as follows:

* * * Will you please advise us as to the disposition which you wish made of this">*296 income in order that the proper entries may be made, checks, if necessary prepared, etc.?

Eleanor M. Funk followed the procedure of going to the office of Murphy, Lanier & Quinn after receipt of their letter and of dictating a letter at its office in which she stated what distribution, if any, she wished to make out of the income of each trust for the prior year, and what amount, if any, she wished to leave in the trust to be accumulated.

Accordingly, in January of 1939, 1940, 1941, and 1942, Eleanor M. Funk, trustee, caused the four trusts' income of 1938, 1939, 1940, and ">*208 1941 to be distributed in part, and accumulated in part, as follows:

	To Eleanor	To Wilfred
Year	Funk	Funk	Accumulated
1938	$ 12,800		$ 272.00
1939		$ 44,000	364.00
1940	8,000	36,000	812.80
1941	22,000	20,000	684,00
Total	42,800	100,00	2,132.80

(The above sums, plus income taxes of $ 19,867.20 for 4 years, constitute the disposition of gross income of the 4 trusts in the total amount of $ 164,800.)

Eleanor M. Funk deposited the sums which she distributed to herself from the annual income of the trusts in her separate and personal bank account in a Montclair, New Jersey, ">*297 bank; and Wilfred J. Funk deposited those made to him in his personal bank account in the Chase National Bank. Eleanor M. Funk did not use any of the distributions to herself for the maintenance of either her home or her children.

Eleanor M. Funk arrived at her decision upon each of the distributions of annual income of the four trusts independently. She did not consult or discuss the matter of distributions in any instance with Wilfred J. Funk, or with anyone in the firm of Murphy, Lanier & Quinn. She relied entirely upon her own discretion. She did not discuss with Wilfred J. Funk his needs, or ask him what he wanted. She did not discuss with her husband her own needs, if any, or what she would do with any distributions which she decided to make to herself.

In making distributions of the annual income of all of the four trusts for the taxable years, 1938 through 1941, Eleanor M. Funk, trustee, did not make the respective distributions to herself and to her husband upon the basis of the needs of either one of them. In her opinion, neither one of them had any need for any part of the income of any one of the four trusts in any one of the four taxable years, or in any of the ">*298 years of making the distributions, because both she and her husband had their own separate and independent income in each of the taxable years; and the separate income of each of them was substantial in each one of the taxable years and in each one of the years in which she made the distributions.

Eleanor M. Funk considered that it would not make any difference to Wilfred J. Funk how she exercised her discretion in distributing the income of the four trusts, because he had such a large income of his own.

Wilfred J. Funk did not at any time ever direct her attention to the distribution of the income of the trusts nor discuss any of the distributions with her prior to her making the distributions.

During the years here involved, Eleanor M. Funk, trustee, made her decisions with respect to the distributions of the trust income in the ">*209 following manner: She took what money she wanted, if any, for her personal use, or to satisfy some desire to be extravagant, and gave her husband whatever was left, or whatever sum she wished to give him. In deciding upon the amounts, if any, which she desired to distribute to herself she was guided chiefly by her personal desires to use the money">*299 for luxury purposes, or to pay premiums upon a life insurance policy upon the life of Wilfred J. Funk which was payable to her upon his death, or to pay income taxes, or to provide herself with "extra money," or to make contributions to charities. In deciding upon the amounts, if any, which she desired to distribute to her husband, she was governed by a desire to "give" money to him, if she wanted to do that, or by a desire to divide "the difference." She "always had absolute power to do whatever she felt she would like to do with the money" in the four trusts. She understood that the money in the trusts was her own money, to do what she wanted to do with it; to use "for extravagant things," and things she wanted "to spend money for"; or to invest. In every instance during the taxable years, she had no particular reason for the decision which she made to distribute part of the trust income to her husband. If she felt like giving him some of the income of the trusts, she did so because she is very fond of him.

Eleanor M. Funk used the money which she distributed to herself from the four trusts during the period involved in this proceeding for the following: She paid premiums of">*300 about $ 20,000, each, on an insurance policy which she took out on the life of her husband. She bought a Rolls Royce automobile and, with that purchase, she surprised her husband. She bought for herself a mink coat, and another one of sable. She gave contributions to charity.

The petitioner did not include in her separate income tax returns any of the sums which she distributed to herself out of the income of the trusts. Wilfred J. Funk did not include in any separate income tax return any of the sums which were distributed to him out of the income of the trusts.

The respondent has included in the gross income of the petitioner for the years 1938 to 1941, inclusive, the entire income which the four trusts received in each of the years 1938 through 1941, and has held that the petitioner is taxable upon the aggregate income of the trusts for each of those years.

OPINION.

This proceeding has been considered by this Court previously. See Eleanor M. Funk, 7 T.C. 890. It was submitted originally under a stipulation of facts, to which certain exhibits were attached. The findings of fact, the opinion, and the conclusions of this Court in this proceeding">*301 in the original report which are found in ">*210 7 T. C. at page 890, were based solely upon the record which was submitted to this Court in this proceeding ² and were not based upon the record in the case of the petitioner's husband, Wilfred J. Funk, which had been decided previously.

">*302 In Funk v. Commissioner, supra, the Circuit Court made the following statement at page 803 of 163 Fed. (2d):

We do not hold here that the conclusions of the Tax Court would not be sustained on a proper record or upon adequate findings of fact.

* * * *

For the reasons stated the decision of the Tax Court will be reversed and the case remanded with directions for further proceedings not inconsistent with this opinion.

Upon remandment of this proceeding, it was placed upon a calendar of this Court for trial in order that a "proper record" would be before this Court, from which it could make "adequate findings of facts." Just before the date which was set for trial, counsel for both parties filed with this Court a stipulation in which it was stipulated, in part, that:

* * * The complete record in the case of Wilfred J. Funk v. Commissioner, Board of Tax Appeals (now the Tax Court of the United States) Docket No. 111193, hereinafter called the Wilfred J. Funk case (including, among other things, the pleadings, testimony of witnesses, exhibits, transcripts, minutes, and Memorandum Findings of Fact and Opinion of this Court which was entered">*303 on February 7, 1944), certified under seal of the Court, may be offered and received in evidence in this proceeding for all purposes without objection by either party, subject only to the right of either party to object to the receipt in evidence in this proceeding of the whole or any part of said record solely on the ground of relevancy or materiality * * *. It is further understood and agreed that petitioner thereafter by brief may note her objections, if any, solely on the ground of relevancy or materiality, to the receipt in evidence of the whole or any part of the record in the Wilfred J. Funk case and her exceptions, if any, to the correctness of the findings of fact contained in this Court's Memorandum Findings of Fact and Opinion entered on February 7, 1944 in the Wilfred J. Funk case. * * *

The entire record in the Wilfred J. Funk case was offered in evidence in this proceeding by the respondent and was admitted in evidence, ">*211 subject to the making of objections on brief by counsel for either party solely on the ground of relevancy and materiality. Respondent made no objections, but contended "that nothing less than the entire record in the Wilfred">*304 J. Funk case meets without equivocation the mandate of the Circuit Court of Appeals." The petitioner, having reserved the right so to do, made several objections on brief to the receipt in evidence in this proceeding of certain portions of the record in the Wilfred J. Funk case on the ground that such portions of the record are irrelevant or immaterial. Careful consideration has been given to all of the objections of the petitioner, but they are now overruled.

The record in this proceeding now comprises the stipulation of facts, with certain exhibits attached, which was originally submitted in this proceeding, and the entire record and the memorandum findings of fact and opinion in the proceeding of Wilfred J. Funk, Docket No. 111193. From the entire record, excepting the memorandum findings of fact and opinion, we have made findings of fact in this proceeding as set forth in the findings of fact, supra. We have not considered the findings of fact which were made in the Wilfred J. Funk case, nor the opinion therein, which are set forth in the aforesaid memorandum findings of fact and opinion because different questions than are at issue in this proceeding were">*305 before the Board of Tax Appeals in the Wilfred J. Funk case.

In considering the record, as now constituted, in this proceeding, we have observed much that is irrelevant and immaterial to the issues presented and have given such parts of the record no weight. On the other hand, we have found in our findings of fact all of the facts which we deem to be relevant and material to the issue which we must decide.

The question to be decided is whether the income of four trusts, known as trusts A, B, C, and D, for the years 1938, 1939, 1940, and 1941 is taxable to the petitioner, as the respondent has determined, or to the trusts, as the petitioner contends.

The respondent contends that the income of the trusts is taxable to the petitioner under section 22 (a) of the Internal Revenue Code and the Revenue Act of 1938 because she had unfettered command of the income and was free to elect to have it distributed to herself. He relies primarily upon Mallinckrodt v. Nunan, 146 Fed. (2d) 1, affirming 2 T.C. 1128; certiorari denied, 325 U.S. 892">325 U.S. 892; Corliss v. Bowers, 281 U.S. 376">281 U.S. 376;">*306 Jergens v. Commissioner, 136 Fed. (2d) 497; certiorari denied, 320 U.S. 784">320 U.S. 784; Edgar R. Stix, 4 T.C. 1140; affd., 152 Fed. (2d) 562; and Annie Inman Grant, 11 T.C. 178; affd., 174 Fed. (2d) 891.

The reasoning of the Circuit Court in the Mallinckrodt case, which ">*212 the respondent deems to be controlling of the question, is quoted in the margin. ³

">*307 The question, in our opinion, turns upon the provision contained in each trust instrument which relates to the power of the trustee over trust income, which is quoted in full in the margin. ⁴ We fail to find any ambiguity in the terms of the clause which sets forth the powers of the trustee over the income of the trusts. Whatever the motives of the grantor of these trusts may have been, the unambiguous and specific language of article first of each trust must control. Bunting v. Commissioner, 164 Fed. (2d) 443.

">*308 The narrow question is whether or not the power given to the trustee, Eleanor M. Funk, the petitioner in this proceeding, gave her control over the trusts' income, so little fettered as to be regarded as less than complete command over the income, to enjoy at her own election, for purposes of the Federal income tax.

The pertinent clause of the trust instruments gave the trustee discretion to pay to herself annually all or part of the annual net income of the trusts in accordance with her needs, "of which she shall be the sole judge." (Italics added.) It was said in Emery v. Commissioner, 156 Fed. (2d) 728, 730, that "the fact that the petitioner did not exercise her powers in her own favor during the taxable years does not make the income any less taxable to her." The same is said here.

">*213 The evidence in this proceeding is to the effect, and findings of fact have been made accordingly, that the petitioner had absolute control over the trusts' income; that she made distributions entirely by the exercise of her own discretion; that she took whatever she wanted each year, and gave some of the rest to her husband in certain years; that what">*309 she distributed to him was determined solely by herself without any consideration of whether or not he had any need for the income; that the petitioner's husband had no need for any of the distributions which she made to him in 1939, 1940, and 1941; and that the sums which she did distribute to him were "gifts." In short, the evidence shows that Eleanor M. Funk, trustee, followed to the letter the provisions in the trust instruments that she should distribute the trust income in her discretion, and that she should be the "sole judge" of how she would distribute the income.

There is no evidence in this proceeding regarding the "necessities" of the petitioner's husband, Wilfred J. Funk, as compared with the "necessities" of the petitioner, upon which any conclusion can be made as to "the minimum which a court would have compelled" her "to give" to her husband under the trusts. Lacking such evidence, the petitioner has failed to prove what amount of income of the trusts, if any, was not within her absolute control. Stix v. Commissioner, supra.

As was said by the Circuit Court of Appeals for the Second Circuit in the Stix case, at page 563 of 152 Fed. (2d) 562:">*310

* * * Quite aside from whether a control, so little fettered, should ever be regarded as less than absolute, when taxes are in question, the taxpayers at bar failed to carry their burden of proof, for they did not show what part of the income they could have been compelled to pay to their sons; and how much, therefore, was not within their absolute control.

We must conclude that, upon the record of this proceeding, the pertinent clause in the trust instruments gave petitioner a command over the disposition of the annual income of the trusts which was too little fettered to be regarded as less than absolute for purposes of taxation. We conclude, further, that the petitioner can not escape taxation on the income of the trusts without showing what she could have been compelled, by a court, to give to her husband. Stix v. Commissioner, supra.See, also, 281 U.S. 376">Corliss v. Bowers, supra;Helvering v. Stuart, 317 U.S. 154">317 U.S. 154; Helvering v. Clifford, 309 U.S. 331">309 U.S. 331; Harrison v. Schaffner, 312 U.S. 579">312 U.S. 579; Mallinckrodt v. Nunan, supra;">*311 Jergens v. Commissioner, supra;Frank v. Commissioner, 145 Fed. (2d) 413; Busch v. Commissioner, 148 Fed. (2d) 798; Emery v. Commissioner, supra;Bunting v. Commissioner, supra; Grant v. Commissioner, supra.

The respondent's determinations are sustained.

It follows from our holding above, that the petitioner understated her correct gross income for the years 1938 and 1939 by more than 25 ">*214 per cent. Therefore, under section 275 (c) of the Internal Revenue Code, the assessment of the deficiencies for those years is not barred by the statute of limitations. O'Bryan v. Commissioner, 148 Fed. (2d) 456.

Decisions will be entered for the respondent.

DISNEY

Disney, J., dissenting: The majority adhere to the same conclusion reached when this case was here before, 7 T.C. 890, despite what was said by the Circuit Court of Appeals in reversing that opinion, 163 Fed. (2d) 796. The majority appear to consider that the sole">*312 reason for reversal was the element of conclusion that judicial notice had been taken of the record in a previous case. Though that factor was, of course, present and perhaps the more immediate cause of reversal, as I read the opinion of the Circuit Court it gives us light upon this interesting question, which is not reflected in the opinion of the majority here. I have expressed my views in extenso in dissenting, at 7 T.C. 890, and it would profit nothing to repeat here what was then said. I merely refer to that dissent as still expressing my views and, I think, the law on this subject.

In addition, however, it should be pointed out that in effect the present opinion of the majority is based, as shown in the syllabus, upon the idea that the petitioner failed to meet the burden of proof by not showing what part of trust income she could have been compelled to pay her husband and how much was not within her absolute control. In this the majority rely upon and quote from Stix v. Commissioner, 152 Fed. (2d) 562. What was there said is applicable, of course, if this case is in essence the same as that; but I do not">*313 think it is. As the Circuit Court said in reversing this matter: "To reach that result, the terms of the trusts must be reduced, at least, to the same nebulous character as those involved in Stix v. Commissioner * * *." In my view, not only were the trusts in the Stix case nebulous, but also, instead of offering parallel to the instant situation, they are the antithesis of the trust here involved; for in the Stix case the crucial and distinctive fact was that the petitioner was the "primary beneficiary" who in the absence of any action by anyone was entitled to the income, whereas here the petitioner was not a beneficiary, primary or otherwise, unless and until the trustee, by affirmative action and within discretion, distributed to herself, as between the three choices of distribution to her, distribution to her husband, or accumulation. In short, the Stix case presented a simple matter of a ">*215 beneficiary entitled to everything, whereas here we have a totally different question. Shall we refuse to discern any difference between the status of a fiduciary and that of a beneficiary; for unless we so do we can not here apply either the Stix case or ">*314 any other case cited in the majority opinion. All have been carefully examined. The Jergens, Grant, Emery, Busch, Bunting, and Frank cases plainly involve mere beneficiaries. The Stuar case was only a matter of taxation of the grantor of the trust. None of these cases involved the present question: Whether we should follow the plain language of section 161 (a) (4) of the Internal Revenue Code providing expressly that income to be distributed or to be accumulated at the discretion of the trustee shall be taxed to the trust. Even the Stix case involved section 162 (b), and not section 161 (a) (4). The Mallinckrodt case was also, in substance, one involving a beneficiary, rather than a trustee, for the petitioner as individual beneficiary was to receive all but $ 10,000 of the income and after the death of his wife would receive all of it. His primary position as beneficiary, as against that of cotrustee, is emphasized by the first syllabus of the opinion, 146 Fed. (2d) 1, not only in that he is referred to as a beneficiary, but in that it is held that trust income to be distributed to him "only on request" was not, if undistributed, ">*315 "income to be distributed currently" within section 162 (b). In short, as the court holds, the trustees could not distribute to the petitioner except upon his request. Certainly such request would come from him as an individual and only when in the words of the court "he elected to withdraw it by requesting that it be paid to him." In addition, it is to be noted that he had testamentary power over the trust corpus -- power also held by the petitioner in the Stix case. This is indeed sharp contrast to the situation of the petitioner in the instant case, who could never receive corpus, power over which resided solely in her husband. Likewise, in the Jergens, Stix, Busch, Emery, and Bunting cases the petitioners had power to take or dispose of the corpus, and in the Grant case the petitioner was said to have "in equity qualified ownership of the corpus." Such persons, under the thought of such decisions as Blair v. Commissioner, 300 U.S. 5">300 U.S. 5, and Helvering v. Horst, 311 U.S. 112">311 U.S. 112, are easily seen to be subject to tax upon the income from the trust corpus, but to ascribe it to the petitioner here is">*316 altogether another matter. I have found no principle, either in logic or in precedent, which is basis for such conclusion.

The majority here, in substance, disregard the difference between trustee and beneficiary. In no case prior to this one has that been done. I merely refer to the discussion of this matter, including reference to Carrier v. Carrier, 226 N.Y. 114, in my dissent to the ">*216 former opinion. I can not believe that what the court said in the Stix case with reference to showing the part of income which trustees could have been compelled to pay to their sons, would have been said under the facts here before us. There is a clear distinction between the "power in trust for his sons to give them what in his discretion he might think proper," which power in the Stix case, it is held, "limited absolute control over the income only in those extreme instances when the 'primary beneficiary' might be guilty" of gross and callous disregard of his sons' necessities, and the fiduciary power of the petitioner here, where she was not possessed of "absolute control over the income" as individual beneficiary, but must from the beginning">*317 and in all things conduct herself as fiduciary. She had only the control of a trustee. The test, as to burden of proof, set in the Stix case is altogether inapplicable here. We are taking a long step farther than the Clifford case has so far been stretched, and from the original position of continuing to tax a grantor upon his income because he failed to insulate himself or free himself from practically unfettered command over it. The majority here, in my view, invade the field of fiduciary relations and say that though bound by the law of trusts the fiduciary may be taxed upon income, not previously hers. Indeed they apply this idea not only to income of which she received only $ 42,800 as against $ 100,000 to her husband, but to a year when she received nothing at all, and to income which was accumulated. In my view, there was no unfettered command by the petitioner over this income, but she was fettered by principles of equity and trusteeship not only ancient in origin, but current in expression. Though the original concept of the Clifford case has been broadened, a fiduciary relationship has not heretofore been ignored. The case of Richardson v. Commissioner, 121 Fed. (2d) 1,">*318 seems to me to be the farthest step away from Clifford -- yet there, though a trustee was found taxable upon the trust income, it was in essence upon the same principle as announced in the Clifford case, that is, that he had unfettered command because he was authorized to terminate the trusts and thereupon receive the corpus free from all trusts. In short, it was as if there was no trust and he was a beneficiary. Petitioner here had no semblance of such power. She could never receive corpus, and could not receive even all of the income, for neither stock dividends nor liquidating distributions could come to her and the corpus was completely beyond the ambit of her power. Finding that no case involves or justifies the length to which we have here gone, and that equity and its principles fetters the petitioner, I would not hold her taxable upon the income here involved. I, therefore, dissent.

---

Footnotes

• *. 2 payments were made in 1937; 1 on March 12 of $ 6,000, and 1 on December 28 of $ 148,000.↩

• *. Not includible in gross income -- tax-exempt.↩

• 1. Letter of Wilfred J. Funk to Eleanor M. Funk:

  "Dear Eleanor: As you know, I have to-day made you the Trustee of four trusts designated as Trusts A, B, C, and D, the property transferred to each trust consisting of 125 shares of the capital stock of Erwin Park, Inc. Under the terms of these trusts you are to have discretion annually to divide the income between us or to accumulate and add it to the principal of the trust.

  "My objective in setting up the trusts in this way is to provide substantial amounts of income which you may dispose of according to the circumstances which you find to exist at the end of each year. No one can foretell with certainty what those circumstances will be, and it is my desire to put you in a position to exercise your own judgment as to how such circumstances shall be met, to the extent of the income arising from these trust funds.

  "It is your legal right and duty to exercise this discretion each year as may seem best to you, and in the exercise of this discretion you are not subject to my control or to the control of any other person."

  Letter of Eleanor M. Funk to Wilfred J. Funk:

  "Dear Wilfred: I have read your letter of to-day with reference to the four new trusts which you are setting up, of which you have made me Trustee.

  "I understand that at the end of each year I am to decide whether I will pay the income which I have received as Trustee to you or to myself or divide it between us or accumulate and add it to principal. I am to do any or all of these things in such amounts and in such proportions as I see fit.

  "I understand that the effect of these trusts is to place upon me the duty of deciding how the money shall be disposed of and that in making this decision I am not subject to your control or that of any other person."↩

• *. Estimated.↩

• 2. Upon appeal from the decision of this Court to the Circuit Court of Appeals for the Third Circuit, argument was made by counsel that this Court, through one of its judges, had, by way of judicial notice, considered the record in a prior proceeding, that of the husband of the petitioner, Wilfred J. Funk, involving the same trusts and three of the same taxable years. That argument, based upon erroneous assumptions, gave rise to an issue in the appeal of this proceeding relating to judicial notice. The learned opinion of the Circuit Court on that issue gives complete reply to the arguments which counsel on appeal undertook to make.

  This Court did not, through any of its judges, take judicial notice of the record in the proceeding of Wilfred J. Funk, Docket No. 111,193, decided under an unprinted memorandum findings of fact and opinion which was entered on February 7, 1944, in its considerations of this proceeding, reported at 7 T.C. 890↩. We stated clearly at p. 898 of 7 T. C. "in the record in this case"; and "on the record."

• 3. "We agree with the majority of the Tax Court that implications which fairly may be drawn from the opinions of the Supreme Court in Corliss v. Bowers, 281 U.S. 376">281 U.S. 376, 281 U.S. 376">378 * * *, Helvering v. Clifford, 309 U.S. 331">309 U.S. 331 * * *, and other cases relative to the taxability of trust income to one having command over it, justify, if they do not compel, the conclusion that the undistributed net income of the trust in suit, during the years in question, was taxable to petitioner under § 22 (a). This, because the power of petitioner to receive this trust income each year, upon request, can be regarded as the equivalent of ownership of the income for purposes of taxation. In Harrison v. Schaffner, 312 U.S. 579">312 U.S. 579, 312 U.S. 579">580 * * *, the Supreme Court approved 'the principle that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income "derived from any source whatever."' It seems to us, as it did to the majority of the Tax Court, that it is the possession of power over the disposition of trust income which is of significance in determining whether, under § 22 (a), the income is taxable to the possessor of such power, and that logically it makes no difference whether the possessor is a grantor who retained the power or a beneficiary who acquired it from another. See Jergens v. Commissioner, supra (p. 498 of 136 Fed. (2d) * * *). Since the trust income in suit was available to petitioner upon request in each of the taxable years involved, he had in each of those years the 'realizable' economic gain necessary to make the income taxable to him. See Helvering v. Stuart, 317 U.S. 154">317 U.S. 154, 317 U.S. 154">168, 317 U.S. 154">169 * * *; 309 U.S. 331">Helvering v. Clifford, supra, at pp. 336, 337 of 309 U.S. * * *; Helvering v. Gordon↩, 8 Cir., 87 Fed. (2d) 663, 667."

• 4. FIRST

  During my lifetime to hold, manage, sell, invest, and reinvest the same, to receive the income thereof and to pay therefrom all taxes, assessments, and other charges and expenses accruing thereon from year to year and properly chargeable thereto, and all expenses incident to the trust hereby created, and in her discretion to pay all or a part of the net income annually to me, or to herself, in accordance with our respective needs, of which she shall be the sole judge, and to accumulate and add to principal the balance of such income, if any. Any income so accumulated and added to principal by the Trustee shall become a part of the corpus of the trust and may not thereafter be distributed by the Trustee.↩