OPINION.
HaRROn, Judge:
The issue in this case is whether petitioner is taxable under section 22 (a) of the Revenue Act of 1938 and the Internal Revenue Code on the income of trusts A, B, C, and D. Petitioner was not the grantor of the trusts. Her husband was. Moreover, he retained the power to dispose of the corpus by will when the trusts terminated upon his death. But during the life of the trusts petitioner was the sole trustee, with the power to pay the income to herself or her husband, or to divide it between them, or to accumulate and add it to principal. This power of distribution or apportionment was to be exercised in accordance with petitioner's own and her husband's respective needs, of which, however, she was the sole judge, not subject to the control of her husband or any other person. During the taxable years she distributed some of the income to herself and some to her husband. The rest she accumulated.
Under the revenue acts the touchstone of taxability of trust income is, for the most part, quite different for the grantor than for the trustee or beneficiary of a trust. Before the? creation of a trust the grantor is the owner of the property and as the owner has to pay the tax, under section 22 (a), on the income derived therefrom. If he gives away only the income he still has to pay the tax. Helvering v. Horst, 311 U. S. 112. Hence, when a grantor sets up a trust he must divorce himself from the economic ownership of the corpus in order to avoid being taxable on the income. Helvering v. Clifford, 309 U. S. 331. The retained attributes of ownership which will make the grantor taxable may, on the one hand, relate to control over the use, administration, and management of the trust corpus. For, even if he has made a definite disposition of the income for the period of the trust, his complete control over the trust corpus earning the income can justify the tax. Helvering v. Clifford, supra; Commissioner v. Woolley, 122 Fed. (2d) 167. In many instances, on the other hand, the essential ingredient of ownership retained by the grantor lies in his power to dispose of the income whensoever and to whomsoever he, wishes. Although he can not personally receive the income, a grantor who owns property from which income is derived can not escape the tax by giving the property away in trust, retaining, nevertheless, the absolute power to distribute the income among various beneficiaries. Commissioner v. Buck, 120 Fed. (2d) 775, and Stockstrom v. Commissioner, 148 Fed. (2d) 491.
Moreover, even though a grantor does not retain such control over the administration and management of the trust corpus and disposition of the trust income as to justify taxing him on the trust income under section 22 (a), he still may have to bear the tax under the provisions of sections 166 or 167. For if a grantor transfers property in trust and gives the trustee discretion to pay the income or corpus back to him, the trustee qua trustee is considered amenable to the wishes of the grantor, without an adverse interest in the disposition of either the corpus or the income, and the income remains taxable to the grantor. Reinecke v. Smith, 289 U. S. 172; Commissioner v. Caspersen, 119 Fed. (2d) 94.
However, taxation of the trustee and beneficiary presents a different problem. Neither the trustee nor the beneficiary had any relation to the property forming the corpus of the trust before the trust was set up. They were not taxable on the income of the property before the trust was created. Hence, if a trustee, other than a grantor, is given powers over trust property which, if held by a grantor, would make the grantor taxable, the trustee does not necessarily come within the purview of section 22 (a) and become liable for tax. A trustee who is not the grantor may have broad powers of control over the management and administration of the trust corpus and may have discretion to dispose of the income among a wide class of beneficiaries, but in the absence of his being able to receive any of the income or corpus personally or in discharge of his obligations, it would be difficult to assert that he is taxable under section 22 (a). See Sydney R. Newman, 5 T. C. 603. In fact, even if he has the power to accumulate or distribute income, which is really the power to give income to himself qua trustee, section 161 (a) (4) and section 162 (c) recognize that he is taxable as trustee only on the amount of income he actually accumu lates, and that he can take a deduction for the amount distributed, which is then taxed to the recipient beneficiary. Moreover, the revenue acts recognize that the trustee in fact is more amenable to the wishes of the grantor than to the beneficiary and that, although the trustee qua trustee has no adverse interest in the disposition of the income, if he has the discretion to accumulate or distribute it, the beneficiary is taxed only on the amount actually distributed. Plimpton v. Commissioner, 135 Fed. (2d) 482. The test then for the taxation of the beneficiary under section 162 is not the practical control which he may have over the trustee, but whether by the terms of the trust instrument the income is to be distributed currently, or is actually distributed if the trustee has the discretion to distribute or accumulate it.
However, although sections 161 and 162 set up a scheme for taxing trust income to the trustee or beneficiary, a beneficiary may, nevertheless, have such unfettered command over the income or corpus of a trust that taxing the income to him as his own under section 22 (a) is justified. It may be true that the amount of command over the income in order to warrant the imposition of the tax is different for a beneficiary than for a grantor. But as this Court pointed out in Elsie C. Emery, 5 T. C. 1006; affd., 156 Fed. (2d) 728, speaking through Judge Black, the appellate courts are agreed that, where "the taxpayer beneficiary, acting alone, and without the concurrence of anyone else, had the right to acquire either the corpus or income of the trust at any time," he was rightfully taxable as the owner of the income under section 22 (a). Mallinckrodt v. Nunan, 146 Fed. (2d) 1; Richardson v. Commissioner, 121 Fed. (2d) 1; Jergens v. Commissioner, 136 Fed. (2d) 497. Hence, the right to require either the income or corpus to be paid to himself has been held to be sufficient for the taxation of the beneficiary of a trust under section 22 (a). Whether the beneficiary exercises this right is, of course, not important. Corliss v. Bowers, 281 U. S. 376; Alfred Cowles, 6 T. C. 14.
Applying these principles to the facts of the instant case, we see that respondent has rightfully assessed the income of the four trusts against petitioner. Petitioner was the sole trustee, with the unrestricted power during the taxable years, as we shall presently demonstrate, to distribute the income to herself personally. It should be noted that the question of whether a beneficiary is taxable on trust income under section 162 (b) when the discretion to distribute the income lies in himself as the sole trustee was expressly left open in Plimpton v. Commissioner, supra, and is not foreclosed by Mallinckrodt v. Nunan, supra, in both of which cases the beneficiary was but one of two cotrustees. However, respondent has not sought to tax petitioner under section 162 (b). Neither has petitioner nor respondent raised the question of the application of this section on brief. Since we think that under section 22 (a), petitioner is clearly taxable under the decisions of this and the Circuit Courts, we also pass the question of the applicability of section 162 (b) and address ourselves only to section 22 (a). As sole trustee, petitioner had complete control over the management and administration of the trust property. She could change the investments, and could register the securities in her own name individually and thus give the appearance to the outside world that she was the complete owner. See Stockstrom v. Commissioner, supra. It is true that the corpus of the trust would go to the appointees of her husband on his death. But the power to dispose of trust property by will is not necessarily a material ingredient to tax-ability. Commissioner v. Buck, supra; Foederer v. Commissioner, 141 Fed. (2d) 53. Here the trust was irrevocable and long term, existing throughout the lifetime of petitioner's husband. This long term feature of the trust is an element which adds weight to the view that the income is taxable to petitioner, since it gives her command over the income for a long period of time, namely, during the life of her husband. It is really the converse of the typical Clifford situation, where the shortness of the term is an attribute of ownership by the grantor, since by the creation of a short term trust the grantor has put the income out of his command for only a short period of time. Although the power of a trustee to decide which of many beneficiaries other than himself should receive trust income might not make him taxable on the income (Sydney R. Newman, supra), here petitioner had, in addition to the power of being able to acquire the income at will during the taxable years, the power to designate a successor trustee upon her death or resignation who would then have the same powers as she herself had been given. There was no restriction on the identity of the successor trustee. Hence, the only attribute of ownership of the income which petitioner lacked was the power to dispose of the income, not at her death, but at her husband's death. During his lifetime she could receive the income and use it for herself or make gifts of such income.
As the Circuit Court of Appeals for the Third Circuit said in Frank v. Commissioner, 145 Fed. (2d) 413, a case in which the beneficiary, entitled to receive 50 per cent of the trust income, was one of two trustees, with the power to choose a charitable corporation to share in the income, and did so in the taxable year, "where one disposes of something which he has legally coming to him by giving it away ahead of its receipt he is, nevertheless, subject to income taxation thereon as though he had actually taken it in hand." The beneficiary in the Frank case was, therefore, held taxable on 50 per cent of the income.
In Blanche N. Hallowell, 5 T. C. 1239, a husband set up a trust for his wife in which the income was to be accumulated by the trustee and was payable 30 days after the end of the fiscal year of the trust to the wife-beneficiary on her request, with the corpus eventually to go to the grandchildren of the settlor. We held the wife taxable on the income under section 22 (a) and observed that the holding in the Mal-linckrodt case had been made by the Circuit Court of Appeals for the Eighth Circuit primarily because of the control of the beneficiary over the income and not because of his command over the corpus.
The Circuit Court of Appeals for the Eighth Circuit made this same observation itself in Busch v. Commissioner, 148 Fed. (2d) 798, when it commented that it had held in the Mállinckrodt case "that a trust beneficiary who has the unqualified and unrelinquished power to command the payment to himself of the annual income of the trust may be taxable upon such income whether in a particular year he chooses to exercise the power or not."
And in Alfred Cowles, supra, which, following Stix v. Commissioner, 152 Fed. (2d) 562, was a case in which the taxpayer was a cotrustee of a trust created by his father, with the power to receive all the income if he demanded it and to appoint the principal at his death, we held that the taxpayer was taxable on the income under section 22 (a), saying that if the power to demand the entire net income "were the only provision of the trust instrument dealing with the disposition of the trust income, we think it is clear that the entire trust income would be taxable to petitioner under section 22 (a) as applied in Mallinckrodt v. Nunan, supra, and Blanche N. Hallowell, 5 T. C. 1239." For, as we observed previously, the power of appointment by will over the trust corpus is not necessarily a material factor for taxability. Foederer v. Commissioner, supra; Mary W. Pingree, 45 B. T. A. 32.
It is claimed, however, that, whatever rights petitioner had, she had those rights as trustee, subject to the control of a court of equity. Also, that she did not have the unrestricted power to take all of the income, since it was to be either distributed in accordance with the respective needs of petitioner and her husband, or accumulated, which, when once done, removed the income from her control. We do not believe, however, that these contentions can remove the instant case from the authority of the Mállinckrodt, Stix, and kindred cases. It is true that petitioner was a trustee, ahd we may assume for purposes of argument that, although the trust instruments and subsequent correspondence between her and her husband attempted to leave un checked her powers as far as the law would permit, her discretion as trustee was not entirely removed from the reach of a court of equity. But, as we had occasion to point out in Wilfred J. Funk (memorandum opinion, Feb. 7, 1944), where respondent was unsuccessful in seeking to tax to petitioner's husband the income of the trusts here involved for several of the tax years here involved, the New Jersey courts, which would govern the administration of this trust, will not substitute their judgment for that of the trustee where discretion is given to the trustee, except upon proof that the exercise of the discretion has been in bad faith. Reed v. Patterson, 14 Atl. 490 (Ct. Error and App. N. J.); Tansey v. New Brunswick Trust Co., 3 Atl. (2d) 575 (Ct. Ch. N. J.); McFerran v. Patterson National Bank, 6 Atl. (2d) 403 (Ct. Ch. N. J.).
Petitioner's husband was a man of great wealth. It is inconceivable that the husband, having voluntarily placed such broad discretionary powers in his wife, and having no need for the trust income during the taxable years, could successfully have complained in a court of equity in New Jersey that the trustee elected to pay all of the income to herself. In any event, as the court in Stix v. Commissioner, supra, pointed out, in order for a limitation of this kind to restrict the absolute command that petitioner had over the income, it was incumbent on her to show what part of the income she could have been compelled to pay to her husband or to accumulate.
There is no suggestion in the record in this case that conditions existed during the taxable years relative to the respective needs of petitioner and her husband which, had petitioner taken all of the income, would have made her guilty of such gross and callous disregard of her husband's needs, as compared to her own, that a court could be summoned to compel her to give her husband some measure of relief. That the husband did receive some of the trust income is unimportant. On the record, this distribution to him was a matter of petitioner's grace and beyond his control. Petitioner has not shown the minimum which a court would have compelled her to give away or accumulate. Everything above such amount petitioner could have kept as her own by reason of the absolute discretionary power conferred upon her in the trust instrument. The intent of the grantor of the trusts is demonstrated also in the subsequent letters between the parties, set forth in the findings of fact. Without a showing of a minimum amount distributable to her husband, petitioner must be considered as having had absolute command over all of the income.
During the taxable years here in question, therefore, we hold that petitioner has failed to demonstrate that her power and command over the income was sufficiently hedged in by the language of the trust instruments so as to relieve her from tax on all of the income under section 22 (a). We take the view that she was the owner of all of the income of the trusts, and that the income which she paid to her husband and income accumulated were gifts to him.
It is true that under the trust instruments stock dividends were beyond the control of petitioner, since they could not be distributed but had to be added to principal. But there is no suggestion that any of the income which respondent seeks to tax to petitioner consisted of stock dividends. To the extent that stock dividend income would not be subject to petitioner's control because it had to be added to principal, she could not be taxed on it. But this does not relieve her from liability for tax on income which she could have distributed to herself during the taxable years in question.
This likewise disposes of the contention that, since petitioner's powers were given to her qua trustee and not qua beneficiary, she can not be taxed on the trust income under section 22 (a). It should be noted that it is difficult to state categorically that she held the powers as trustee or as beneficiary. But in any event, the argument that powers retained as a trustee may not constitute substantial attributes of ownership for purposes of taxability under section 22 (a) has been effectively disposed of in the Clifford case itself, where the grantor was the trustee of the trust he created. As was said in Stockstrom v. Commissioner, supra, there is no rule, except as a limitation may be imposed by statute, that prevents consideration under section 22 (a) of any element of control, whether exercisable as an individual, directly, or as trustee, in appraising his benefits and satisfactions from the trust property or trust income. In essence, the fact that the petitioner may have had to act as trustee did not, under the circumstances disclosed here, mean that she did not have sole and unrestricted power to receive all of the trust income, nor does such fact relieve petitioner from imposition of the tax because she did not choose during the taxable years to exercise the power fully in her own favor by taking all of the income. Mallinckrodt v. Nunan, supra.
Finally, it is asserted that the instant case comes within the text of section 161 (a) (4), since petitioner could have either distributed the income to herself or to her husband, as beneficiaries, or accumulated it. Section 161 (a) (4) does not mean that the trustee must always pay the tax where he has discretion to distribute or accumulate the income. If the trustee distributes the income to the beneficiary instead of accumulating it, the beneficiary, and not the trustee, has to pay the tax under section 162 (c), which allows the fiduciary to deduct the income actually distributed and requires the beneficiary recipient to pay the tax thereon. But the contention that section 161 (a) (4) can apply here overlooks the principle that when the income of a trust must be regarded as that of the beneficiary under section 22 (a), no subsection of 161 (a) can have any applicability. Stix v. Commissioner, supra; Mallinckrodt v. Commissioner, supra. See also Helvering v. Clifford, supra, and Douglas v. Willcuts, 296 U. S. 1. Thus, in Alfred Cowles, supra, where the income was to be accumulated if the beneficiary did not demand it, we nevertheless held that the beneficiary was still taxable on the income under section 22 (a). See also Blanche N. Hallowell, supra.
We hold that petitioner is taxable under section 22 (a) on the income of trusts A, B, C, and D for the taxable years here in question. The assessment of the deficiencies for the years 1938 and 1939 as determined by respondent is not barred by the statute of limitations, for the reason that petitioner's returns for those years understated her proper gross income by more than 25 per cent and the notice of deficiencies was mailed to petitioner within five years after her returns for those years were filed. Sec. 275 (c), I. R. C.; O'Bryan v. Commissioner, 148 Fed. (2d) 456.
Reviewed by the Court.
Decision will he entered for the resfondent.
Section 162 (b) of the Internal Revenue Code provides: "There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributable currently by the fiduciary to the legatees, heirs, or beneficiaries, but the amount so allowed as a deduction shall be included in computing the net income of the legatees, heirs, or beneficiaries whether distributed to them or not."
For example, section 167 (c) of the Internal Revenue Code provides that Income of a trust shall not be considered taxable to the grantor merely because In the discretion of the grantor acting as trustee it may be applied or distributed for the support or maintenance of a beneficiary whom the grantor is legally obligated to support or maintain, except to the extent that such income is so applied or distributed. However, if the grantor retains the discretion as grantor and not as trustee, it is taxable to him, whether or not so applied or distributed. Hopkins v. Commissioner, 144 Fed. (2d) 683.
SEC. 161. IMPOSITION OF TAX.
(a) Application op Tax. — The taxes imposed by this chapter upon Individuals shall apply to the income of estates or of any kind of property held in trust, including— *
(4) Income which, in the discretion of the fiduciary, may be either distributed to the beneficiaries or accumulated.