State Sav. Loan & Trust Co. v. Commissioner

*229 These proceedings*1554 are for the redetermination of petitioner's income-tax liability as trustee for 1926, 1927, and 1928. The Commissioner has asserted deficiencies for these years in the amounts of $5,017.94, $79.84, and $3,916.61, respectively. The allegations of error being identical in each petition, the proceedings were consolidated for hearing. The questions at issue are (1) whether under a certain trust indenture there was created a single trust for the nine beneficiaries named therein or whether there were created nine separate trusts, one for each of the beneficiaries, and (2) whether the income from the trust or trusts is taxable to the petitioner as trustee.

FINDINGS OF FACT.

On February 7, 1925, J. Willis Gardner and Helen G. Gardner, his wife, executed a certain trust agreement with the petitioner as trustee by the terms of which the donors transferred to the trustee 1,620 shares of the common stock of the Gardner-Governor Company to be held for the equal benefit of their nine grandchildren. The trust agreement received in evidence as petitioner's Exhibit 1 is made a part of these findings by reference.

Portions of the trust agreement deemed to be material to the issues presented*1555 are as follows:

P3 Said trustee hereunder shall receive and hold said property to it hereby assigned and transferred in its own name and shall have full power to compromise, adjust and settle all claims and to fully decide all questions that may from time to time arise by reason of its ownership of said property or of any other money, property or securities that may hereafter be added to the trust fund hereby created, keeping all moneys coming into its possession from the body of said trust estate by reason of the sale of said securities or other property it may at any time hold in connection with this trust, at all times invested as nearly as can be done in good interest bearing or dividend paying securities.

P4 It is understood and agreed that the said parties of the first part are creating the trust estate provided by this agreement for the equal benefit of their grandchildren, Helen G. Rogers, Eleanor Rogers, Edward A. Rogers, *230 Katharine G. Gardner, J. Willis Gardner, 2nd, Joseph E. Gardner, Stephen B. Botsford, Robert G. Bostford, Peter Fleischmann, and that all directions herein given for the payment of income or body of the trust estate shall*1556 be subject to the provision that each of said grandchildren have an equal beneficial interest in the trust estate hereby created and in the net income produced by said interest and that all provisions hereinafter made for the payment of income and body of the trust estate to said grandchildren and to those who may represent them after their decease, shall have reference only to the interest which said grandchildren had in and to the body of the trust estate and the income thereon.

P5 Said trustee shall pay all or part of the net income on the trust estate hereby created for the education, comfort and support of said grandchildren whenever in the judgment of said trustee it is for the best interest of said grandchildren or any of them so to do. It being understood that in passing on the question of the payment of income to said grandchildren at any and all times said trustee shall consult with the parents of said grandchildren, who are the children of said parties of the first part, and such payments shall continue to be made for the benefit of said grandchildren until they respectively arrive at the age of thirty years; and as each of said grandchildren arrive at*1557 the age of thirty years said trustee shall pay to him or her one-third of the trust estate in which said grandchildren has a beneficial interest and after such distribution shall pay the net income received on the remainder of the trust estate in which said grandchild has a beneficial interest to said grandchild until it arrives at the age of thirty-five years, at which time said trustee shall pay to said grandchild a one-half part of the trust estate then in its possession, in which such grandchild has a beneficial interest and after said last mentioned distribution shall pay to said grandchild the net income received on the remainder of the trust estate in which such grandchild has a beneficial interest until it attains the age of forty years, at which last mentioned time said trustee shall pay over and distribute to said grandchild so attaining the age of forty years, the remainder of the trust estate in which it then has a beneficial interest as its absolute property.

P6 Should any of said grandchildren die before receiving the whole of the trust estate and income thereon, herein directed to be paid to him or her, said trustee, subject to provisions hereinafter*1558 made, shall pay such part of the trust estate and income thereon then undistributed to the heirs of his or her body, the survivor or survivors thereof, per stirpes and not per capita; * * *

* * *

P11 No beneficiary under this agreement shall have the right or power to anticipate, sell, assign, encumber, charge or dispose of by way of anticipation or otherwise, the income or part of said trust fund which shall at any time be payable to him or her, and notwithstanding any such charge, sale, assignment or other disposition, said trustee shall pay such income and trust fund into the proper hands of the beneficiary entitled to same. And in the event creditor's bills shall be filed or any other legal proceedings instituted, at any time against any beneficiary or trustee for the purpose of reaching the trust fund or income provided for such beneficiary and diverting it from the object of this trust, and a decree of judgment is therein sought for that purpose then immediately prior to the entry of said judgment or decree and before the lien thereof shall take effect the gift of said income shall terminate and the gift of the body of the trust estate shall lapse and said trustee shall*1559 thereafter hold the body of the trust estate during the period said beneficiary would *231 have had a beneficial interest therein and shall expend the income or interest provided for such beneficiary for his or her support or the comfort and support of his or her family as in the judgment of said trustee is best and at the time hereinbefore provided for the payment of the body of the trust estate to said beneficiary, same together with income thereon shall be retained or distributed in the same manner as is hereinbefore provided for the retention or payment of the body of the trust estate or income thereon in the event of the death at that time of said beneficiary, provided, however, distribution of the body of the trust estate shall be made only to beneficiaries against whom no judgment or decree has been rendered and who have not sold, assigned or encumbered their interest hereunder. [Italics supplied.]

The trust instrument was drawn by officers of the petitioner.

There was a difference of 12 years in the ages of the eldest and youngest of the beneficiaries named in the trust agreement and all except one were minors on April 2, 1931.

For the years 1925 to 1927, *1560 inclusive, the petitioner filed only one return for the trust estate and paid the tax shown to be due thereon.

On April 2, 1931, the Circuit Court of Adams County, Illinois, in an action brought by certain beneficiaries against the others, entered a decree construing the trust instrument referred to above as creating nine separate trusts, one for each of the nine beneficiaries, and ordered that separate accounts be set up for each of the trusts as of the date of its creation. The court found that it was the intention of the donors to create separate equal trusts for the beneficiaries and decreed that the trustee:

* * * was given a discretion with regard to the payment of a part or all of the net income of each said separate trust to the respective beneficiaries therein for the purpose of his or her education, comfort and support but that said trustee shall not have or exercise any discretion as to the annual payment and distribution to said beneficiaries in each of said separate and distinct trusts as to the whole of the net income from each of said respective trusts and that said trustee is required by said Trust Indenture and by this order to pay and distribute to the respective*1561 beneficiaries all of the net income from said respective trusts annually without any discretion on the part of said trustee excepting such sums as shall be advanced during any current fiscal year for the education, comfort and support of any of said beneficiaries in said trusts.

* * * all of said net income in excess of such requirements shall be credited by said trustee at the end of each current fiscal year in said income accounts which shall be kept separate and distinct by said trustee.

The above referred to action was brought by three of the beneficiaries named in the trust instrument against the taxpayer and the remaining beneficiaries. The defendants defaulted and judgment was rendered in accordance with the complainants' averments set forth in their bill of complaint.

No trust funds were paid out or credited to any of the beneficiaries in the taxable years 1926, 1927, and 1928.

*232 OPINION.

SMITH: In these proceedings the petitioner contends that the indenture of trust of February 7, 1925, created nine separate trusts instead of a single trust. It contends that this is apparent from the following language excerpted from paragraph 5 of the agreement:

*1562 * * * and as each of said grandchildren arrive at the age of thirty years, said trustee shall pay to him or her one-third of the trust estate in which said grandchild has a beneficial interest * * *.

It is argued that if only one trust existed for the nine grandchildren and each had an equal beneficial interest, then each would have a total one-nineth interest; that the above quoted words from the fifth paragraph of the instrument would be meaningless unless the instrument as a whole be construed to create nine trusts, since "each child would at no time be entitled to as much as a one-third interest." The argument is not sound.

The indenture of trust is not ambiguous. The settlors simply desired to create a trust fund in which each of their nine grandchildren should have an equal beneficial interest. They went to the petitioner and the petitioner's officers drew the indenture of trust, which was executed by the settlors and the petitioner. The petitioner was apparently of the opinion that the matter could be handled as one trust in one account and accordingly the instrument throughout speaks of the "trust estate" or the "trust fund" which was created by the instrument. The*1563 petitioner kept its books of account showing the creation of a single trust fund so far as the years under review are involved, and for the years 1925, 1926, and 1927 filed a single return for the trust fund. No moneys were paid to the beneficiaries or for the education, comfort, and support of the beneficiaries during the taxable years. It was much simpler for the petitioner to keep its accounts in this manner. It was merely a mathematical computation to determine the beneficial interest of each beneficiary in the trust. fund. Each was entitled to one-ninth of the whole. So long as this situation existed there was no occasion for the separation of the trust fund.

The petitioner insists that the decree of the Circuit Court of Adams County, Illinois, entered on April 30, 1931, conclusively proves that nine separate trust funds were created by the indenture of trust. We are of the opinion, however, that such a decision of the Circuit Court of Adams County is not binding upon this Board. As shown by our findings of fact, the decree of the county court was the decree desired by the beneficiaries. The defendants defaulted and judgment was rendered in accordance with the complainants' *1564 averments set forth in their bill of complaint. In Fidelity & Columbia*233 Trust Co. v. Lucas, 52 Fed.(2d) 298, it was held that the Government in administering the Federal tax laws was not concluded by an "agreed judgment" entered in the Circuit Court of Jefferson County, Kentucky, involving the construction of a will. The court there said:

* * * Furthermore, it is well settled that a decision of a State Court, establishing a local rule or property or, construing a state statute or a contract made after the rights of a litigant in a federal court suit had accrued, and in a case to which he was not a party, is not binding upon the federal court. I know of no reason why this rule should not apply to the construction of wills. See Kuhn v. Fairmont Coal Co.,215 U.S. 349, 30 S.Ct. 140, 54 L.Ed. 228, and authorities there cited.

The second contention of the petitioner is that the trust created by the indenture of trust was a discretionary trust and that the income of the trust estate which might have been distributed to the beneficiaries in the years 1926, 1927, and 1928 is deductible from gross income under subdivision (2) *1565 of section 219(b) of the Revenue Act of 1926 and the corresponding section of the Revenue Act of 1928 (sec. 162(b)).

The respondent, on the other hand, contends that section 219(b)(3) of the Revenue Act of 1926 and the corresponding section of the Revenue Act of 1928 (sec. 162(c)), barred the deduction of the amounts claimed. Section 219(b) of the Revenue Act of 1926 reads in part as follows:

(2) 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 distributed currently by the fiduciary to the beneficiaries, and the amount of the income collected by a guardian of an infant which is to be held or distributed as the court may direct, but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not. Any amount allowed as a deduction under this paragraph shall not be allowed as a deduction under paragraph (3) in the same or any succeeding taxable year;

(3) In the case of income received by estates of deceased persons during the period of administration or settlement of the*1566 estate, and in the case of income which, in the discretion of the fiduciary, may be either distributed to the beneficiary or accumulated, 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 properly paid or credited during such year to any legatee, heir or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary.

In support of its contention the petitioner relies upon Blair v. Barton, 26 Fed.(2d) 765; and Willcuts v. Ordway, 19 Fed.(2d) 917. An examination of these cases shows, however, that they involved entirely different facts. In Blair v. Barton, supra, the question was whether a trustee was liable to income tax in respect of amounts distributed to beneficiaries under a discretionary trust, the total *234 income of the trust fund having been paid to such beneficiaries. The court held that the trustee was not liable under such circumstances, the statutes involved being the Revenue Acts of 1918 and 1921. *1567 In Willouts v. Ordway, supra, the acts involved were the Revenue Acts of 1916, 1918, and 1921. The facts were that a will bequeathed to each of the children of the testator an equal share in the income of the trust fund. Pursuant to its terms the shares of the adult children were paid to them each year while the shares of the minor children, after certain expenses for maintenance, etc., were invested to accumulate until they severally reached the age of 21 years. The trustees each year purchased securities with the share of income distributable to each minor in his or her name, which they kept in a special safe-deposit box apart from any papers of the trust and such investments were not carried on the books nor treated as any part of the trust estate. It was held that such segregation of the shares of the minors was a distribution and that neither they nor their accumulations were subject to tax as income of the trust, but as separate units to the several beneficiaries.

In the present proceedings the books and records of the trustee show that no money was paid or credited to any beneficiary in either of the years in question. The income of the trust fund was to be*1568 either distributed to the beneficiary or accumulated within the discretion of the fiduciary. The facts bring these proceedings squarely within the provisions of section 219(b)(3) of the Revenue Act of 1926, and the corresponding section of the Revenue Act of 1928. Since there were no distributions to the beneficiaries during the taxable year, and since there were no credits to the accounts of the beneficiaries, it must be held that the income of the trust fund is taxable to the petitioner, the trustee.

Judgments will be entered for the respondent.