Marx v. Commissioner

*538 The respondent determined deficiencies against petitioners in income taxes as follows:

*1019 These proceedings have been consolidated for hearing and report. The deficiencies in the respective cases result in part from some determinations of the Commissioner which are no longer in issue but whcih have been settled by stipulations of the parties filed. Effect will be given to the stipulations in recomputation of the deficiencies under Rule 50. Also, claims for refund are made in Docket Nos. 88593 and 88594. The issues remaining for determination by this Board involve the following questions:

1. Whether the income from said trust or trusts is income which is to be distributed currently to the beneficiaries, within the meaning of section 161(a)(2) of the Revenue Act of 1932, or income which, in the discretion of the trustees, may be either distributed currently to the beneficiaries or accumulated, within the meaning of section 161(a)(4) of the Revenue Act of 1932. (All docket numbers.)

2. Whether the will of Joseph E. Marx created three separate and distinct trusts or one trust. (Docket No. 88594.)

3. Whether the income of a certain trust created December 15, 1933, by Emily Marx as settlor, for the benefit of her child, Marian House, is taxable to the settlor. *1020 (Docket No. 88595.)

The facts have been stipulated and certain documents have been received in evidence and from these the findings of fact are made.

FINDINGS OF FACT.

The petitioners are residents of the State of New York. In the year 1932, Emily Marx was 29 years of age, Leonard Marx was 27 years of age, and Regina Marx was 49 years of age. At the date of death of decedent none of the above persons were minors.

Joseph E. Marx, the decedent, died December 22, 1929, a resident of the City, County, and State of New York. His last will and testament, executed January 14, 1928, was admitted to probate by the Surrogate's Court of the County of New York on February 21, 1930. On February 21, 1930, letters testamentary were issued to the executors named in the will by the Surrogate's Court of New York County and on February 18, 1931 letters of trusteeship under the will were issued to Leonard Marx and Emily Marx, the Chemical Bank & Trust *539 Co. of New York having renounced and surrendered its right to qualify as testamentary trustee. (Exhibit II.)

By the terms of his will (Exhibit I), decedent bequeathed his residuary estate to trustees, in trust, for the benefit*1021 of his wife, Regina Marx, and his two children, Leonard and Emily. The will provided in material part as follows:

ARTICLE THIRD.

ALL THE REST, RESIDUE AND REMAINDER of my property, real and personal, of every kind whatsoever and wheresoever situated, I give, devise and bequeath to my Trustees, hereinafter named, IN TRUST, however, to divide the principal thereof into three equal shares, one for my said wife, Regina Marx, one for my son, Leonard M. Marx, and one for my daughter, Emily Marx, and to dispose of the principal and income of the said shares as follows:

1. To apply the income of one of the said parts to the use of my said son, Leonard M. Marx, during his life or until he shall have attained the age of thirty years, and thereupon, to convey, transfer and pay over to him the principal thereof, or in the case of his death before attaining such age or during the life of my said wife, to convey, transfer and pay over the principal thereof to his*1022 lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to my said daughter, Emily Marx, or in case she is not then living, to her lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to my said sister, Mathilde Emanuel, or in case she is not then living, to her lineal descendants then surviving, in equal shares, per stirpes and not per capita.

2. To apply the income of the other of the said parts to the use of my said daughter, Emily Marx, during her life, and upon her death, to convey, transfer and pay over the principal thereof to her lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to my said son, Leonard M. Marx, or in case he is not then living, to his lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to my said sister, Mathilde Emanuel, or in case she is not then living, to her lineal descendants then surviving, in equal shares, per stirpes and not per capita.

II. To apply the income of the share set apart for my said son, Leonard M. Marx, to his use, during his life or until he shall have attained*1023 the age of thirty years, and thereupon, to convey, transfer and pay over to him the principal thereof, or in case of his death before attaining such age or during my life, to convey, transfer and pay over the principal thereof to his lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to apply the income thereof to the use of my said daughter, Emily Marx, during her life, and upon her death, to convey, transfer and pay over the principal thereof to her lineal descendants then surviving, in equal shares, per stirpes and not per capita, or if none, to my said sister, Mathilde Emanuel, or in case she is not then living, to her lineal descendants then surviving, in equal shares, per stirpes and not per capita.

III. To apply the income of the share set apart for my said daughter, Emily Marx, to her use, during her life, and upon her death, to convey, transfer and pay over the principal thereof, in equal shares, per stirpes and not per capita, to her lineal descendants then surviving, or if none, to apply the income *540 thereof to the use of my said son, Leonard M. Marx, during his life or until he shall have attained the age of thirty*1024 years, and thereupon, to convey, transfer and pay over to him the principal thereof, or in case of his death before attaining such age or during the life of my said daughter, to convey, transfer and pay over the principal thereof, in equal shares, per stirpes and not per capita, to his lineal descendants then surviving, or if none, to my said sister, Mathilde Emanuel, or in case she is not then living, in equal shares, per stirpes and not per capita, to her lineal descendants then surviving.

ARTICLE FOURTH.

II. My Trustees shall not be required to make physical division of the funds held by them hereunder except when necessary for distribution of principal but may, in their discretion, keep the trust property in one or more consolidated*1025 funds in which the separate shares shall have undivided interests.

Decedent appointed Leonard M. Marx and Emily Marx and the Chemical National Bank of New York as executors and trustees under his will. The bank surrendered its right to qualify as testamentary trustee.

During the year 1927 Emily Marx, one of the petitioners herein, at the request of Joseph E. Marx, prepared various drafts of a will following a certain set of printed forms prepared and distributed by the Chemical Bank & Trust Co. of New York. The last draft submitted by Emily Marx to Joseph E. Marx in the latter part of the year 1927 was practically identical in wording with the will finally executed by Joseph E. Marx, except that in article third there appeared in the draft submitted the words "to pay the income * * * over to" and "to pay the incoem * * * to", instead of "to apply the income * * * to her (his) use" and "to apply the income * * * to the use of" as appears in the executed will.

During his lifetime Joseph E. Marx refused to make available to the petitioners, Regina Marx, Leonard Marx, and Emily Marx, any portion of the funds belonging to them which were in his custody, and limited their financial*1026 resources to such funds as were necessary for their current maintenance and support. Joseph E. Marx had on occasions expressed an intention to establish for each of the petitioners in his last will and testament an annuity for life of $2,500 per year. Prior to his death, Leonard Marx endeavored to persuade him to modify this intention so as to give the trustees of his will the power to determine the amount of income needed annually for the maintenance and support of each of the petitioners.

*541 On December 9, 1930, an order was made by the Surrogate's Court fixing the transfer tax on the property left by the decedent. The residuary estate bequeathed by article third of the will was valued in the taxing order at $508,998.90. The bequests given to Regina Marx and Emily Marx were described in the taxing order as "life estate in $169,666.30." The bequest given to Leonard Marx was described as "temporary life estate in $169,666.30 until age 30." (Exhibit III.)

On March 26, 1931, the executors transferred to the trustees the residuary estate, consisting of stocks, bonds, accounts receivable, various claims, and cash. The nature of the property was such as to make physical*1027 segregation by the trustees inadvisable and in many cases impossible. Therefore, the trustees did not make physical division of the property received by them pursuant to article third of the will, into three separate parts, but kept it in one fund as provided in article fourth, II, of the will.

Upon receipt of the trust property, and on March 26, 1931, the trustees opened an "Estate General Ledger." The ledger was kept by an employee in the office of Leonard Marx. Said employee had neither bookkeeping nor accounting training or experience. The pages of the ledger she captioned, respectively, "Stocks", "Bonds", "Bank Accounts", "Savings Accounts", "Transfer Tax Deposits", "Income Profit and Loss", "Regina Marx Income", "Leonard Marx Income", "Emily Marx Income", "Transfer Tax Assessments", "Principal Capital Account", "Accrued Interest", "Bond Interest", "Dividends", "Bank Interest", "Miscellaneous Interest", "Sale of Investments."

The trustees entered in the "Estate General Ledger", on pages then captioned "Regina Marx Income", "Leonard Marx Income", and "Emily Marx Income", the amounts of $4,255.19 for the year ending December 31, 1931; $2,563.43 for the year ending December 31, 1932; *1028 and $6,763.22 for the year ending December 31, 1933. Said credits to each account represented one-third of the entire net income received by the trustees for the year indicated, increased by one-third of the capital profits and decreased by one-third of the capital losses in accordance with an oral agreement with the three beneficiaries made on or about March 25, 1931, which was recorded in writing on November 28, 1934. (Exhibit IV.)

Acting upon a discretion which they assumed they possessed as to the distribution of income, the trustees determined that none of the beneficiaries needed any portion of the trust income during the years 1931 and 1932 and no distribution of income was made in those two years and no portion of the trust income was made available to any of said beneficiaries in those years by the trustees. For the same reason *542 no portion of the trust income was distributed and no portion of the trust income was made available by the trustees to Leonard Marx in 1933. But on December 30, 1933, payment was made to Regina Marx of $7,000 upon determination by the trustees that she needed that amount of income. In 1933 no part of the trust income was paid to*1029 or made available to Emily Marx for the same reasons as above, except that on December 30, 1933, the trustees paid to the guardian of Marian House, the daughter of Emily Marx, the sum of $3,500 pursuant to a certain instrument of assignment (described more fully hereafter). This payment was debited on the page captioned "Emily Marx Income." During the years 1932 and 1933, the beneficiaries to whom no payments were made had ample financial means from outside sources for their proper maintenance and support.

The trustees filed a single income tax return for each of the years 1931, 1932, and 1933, reporting the entire income received by them as trustees and paid the tax shown thereon. On October 18, 1934, Emily Marx, attorney for the trustees, for the first time saw these returns and she advised that three returns for three trusts should have been filed for each year. Pursuant to her suggestion, the trustees on December 5, 1934, filed three amended returns for each of the years 1931, 1932, and 1933, which were designated, respectively, "Discretionary trust for the benefit of Regina Marx", "Discretionary trust for the benefit of Leonard Marx", and "Discretionary trust for the benefit*1030 of Emily Marx." At the same time the captions in the "Estate General Ledger" were changed to "Trust Account Regina Marx Income", "Trust Account Leonard Marx Income", and "Trust Account Emily Marx Income."

The single trust income tax return for the year 1932, filed by the trustees March 15, 1933, reported the entire trust income for 1932 and showed a total tax liability of $150.54, which was paid as follows: March 15, 1933, $37.63; June 15, 1933, $37.63; September 15, 1933, $37.63; December 15, 1933, $37.65. The total tax liability shown by the amended returns filed December 5, 1934, was $48.45. Simultaneously with the filing of the amended returns, the trustees filed claim for refund for $102.08 representing the difference between the amount paid on the original return and the amount due on the amended returns.

The single return for the year 1933, filed by the trustees March 14, 1934, showed a total tax liability of $207.52, which was paid as follows: March 14, 1934, $51.88; June 8, 1934, $51.88; September 14, 1934, $51.88; October 4, 1934, $51.88. The tax liability for 1933 shown by the three amended returns filed December 5, 1934, was $211.86. Simultaneously with filing*1031 the amended returns and on December 5, 1934, the trustees paid an additional tax of $4.34. When *543 the respondent indicated an intention of taxing the trust income to the beneficiaries, the trustees, on February 14, 1936, filed a claim for refund in the amount of $211.86.

As of October 4, 1934, the trustees prepared and filed their intermediate account for the period commencing March 25, 1931. The summary of this account reads in part:

which income is applicable to the Trusts established by the decedent, as follows:

There was no contest as to such accounting nor as to the construction of the will.

On December 15, 1933, the petitioner, Emily Marx, Docket No. 88595, as settlor, made and entered into an agreement of trust with Leonard Marx as trustee. (Exhibit IV.) This agreement provides in part as follows:

THIS AGREEMENT made this 15th day of December, 1933 between EMILY MARX of 225 Broadway, New York City, *1032 (herein called the "SETTLOR") and LEONARD MARX of 347 Madison Avenue, new York City, (herein called the "TRUSTEE")

WITNESSETH:

WHEREAS the Settlor desires to relieve herself of the care of a portion of her estate and for that purpose desires to establish a trust upon the conditions and for the uses and purposes hereinafter set forth; and

WHEREAS the Settlor desires to make adequate provision for the proper education and support of her child now en ventre sa mere; and

WHEREAS adequate provision for the proper education and support of said child after the death of the Settlor has already been made; and

WHEREAS the Settlor is the beneficiary of a Trust established under and by virtue of subdivision III of Paragraph "THIRD" of the Last Will and Testament of Joseph E. Marx, deceased, dated January 14, 1928,

NOW, THEREFORE, it is hereby mutually agreed as follows:

FIRST: The Settlor hereby gives, grants, transfers, assigns and sets over unto the Trustee and his successor, so much of the annual income to which the Settlor is entitled or may be entitled under the provisions of the Trust established under the Will of Joseph E. Marx, deceased, as above set forth, as shall equal*1033 the sum of Thirty-five hundred ($3500) Dollars, per year,

TO HAVE AND TO HOLD the same unto the said Trustee and his successor, IN TRUST NEVERTHELESS for the following uses and purposes:

1. To collect the income at the end of each year and to apply said income to the use of the child of the Settlor born after the date of this agreement (and now en ventre sa mere), during the life of said child, and until said child shall have attained the age of twenty-one years. Upon the death of said child, or when said child shall have reached the age of twenty-one years, if *544 either of said events shall have happened during the life of the Settlor, to apply said income to the use of the Settlor as long as she shall live.

* * *

THIRD: The Trustee in his discretion may apply to the use of said minor so much of the share of the income to which such minor is entitled, as the Trustee may deem necessary or proper for the education and support of said minor.

FOURTH: The Trustee may make payment of any income applicable to the use of the minor by making such payment, in his discretion, either to the parent or guardian of said minor, or by applying the same for the benefit of said*1034 minor, and the receipt by such parent or guardian of such minor, or evidence of the expenditure of such money for the benefit of such minor shall be a full and sufficient discharge to the Trustees for any such payment.

FIFTH: During the minority of the beneficiary entitled to income hereunder, the Trustee may accumulate for the benefit of such minor so much of the income applicable to his or her use as the Trustee in his absolute and uncontrolled discretion may deem necessary for the proper education and support of such minor.

It is provided in the agreement of December 15 that any sums of money received by the trustee shall immediately constitute a trust fund. (Par. sixth.)

On December 30, 1933, Leonard Marx and Emily Marx, trustees under the Joseph E. Marx trust, paid over to the guardian of Marion House, the beneficiary of the Emily Marx trust, the sum of $3,500. The guardian filed an income tax return under the name of "Trustee for Baby House II", reporting as income the $3,500 received, and paid a tax $100of thereon. When the Commissioner indicated his intention to tax the $3,500 to petitioner Emily Marx, the guardian of Marian House filed a claim for refund of the*1035 $100 tax paid.

OPINION.

HARRON: Issue 1. - In the cases of Leonard, Emily, and Regina Marx, individual taxpayers and petitioners, part of the deficiency results from the action of the respondent in adding to their respective taxable incomes certain amounts, representing one-third of the trust income received by the trustees in the taxable year or years under the will of Joseph E. Marx, which amounts were not reported by said individuals in their separate, individual income tax returns because the amounts were not paid over to them by the trustees in the taxable year or years. Respondent determined that such trust income was taxable to the three beneficiaries as income "which is to be distributed currently" by the fiduciaries to the beneficiaries under the provisions of section 161(a)(2) of the Revenue Act of 1932. Thereupon, respondent allowed to the fiduciaries deductions for such amounts from the gross income of the trust, under section 162(b), and taxed the beneficiaries for such income, thether distributed *545 to them or not, under section 162(b). Determination of the question involved in the main issue in these consolidated proceedings affects the tax liability*1036 of the trustees in Docket No. 88594 for the year 1933, accordingly. The trustees, in their fiduciary return for the year 1933, computed and paid income tax on fiduciary income after deducting $10,500 as income "which is to be distributed currently." Respondent determined that the amount of the income to be distributed currently was, rather, $12,601.46 and allowed as additional deductions, accordingly, the amount of $2,101.46. The deficiency of the trustee resulted from other determinations now stipulated out of these proceedings.

The main question in all the consolidated proceedings is whether the annual income of the trust or trusts in the taxable years is taxable to the beneficiaries as income which is to be distributed currently although no distribution was made to them. The question arises under sections 161 and 162 of the Revenue Act of 1932.

In determining this question it is necessary to examine article third of the will, which directs the trustees:

* * * to divide the principal into three equal shares * * * and to dispose of the principal and income of the said shares as follows:

I. To apply the income of the share set apart for my said wife, Regina Marx, *1037 to her use during her life, and upon her death, to divide the principal thereof into two parts and to dispose of the said parts * * *.

II. To apply the income of the share set apart for my said son, Leonard M. Marx, to his use, during his life or until he has attained the age of thirty years and thereupon to convey, transfer and pay over to him the principal thereof * * *.

III. To apply the income of the share set apart for my daughter, Emily Marx, to her use during her life, and upon her death, to convey, transfer and pay over the principal thereof * * *. [Italics supplied.]

The petitioners construe the will as giving to the trustees power to distribute or accumulate the income for future distribution at their discretion, as they shall deem proper to meet current needs of the beneficiaries. To support this construction, petitioners endeavor to import an intention from the decedent out of his action in deleting from early drafts of his will such words as would direct the trustees "to pay the income over to" any beneficiary and substituting therefor the words which appear in the last will, "to apply the income to his (or her) use." The trustees*1038 and the beneficiaries believe that the testator intended to give the trustees power to distribute only trust income necessary for the support and maintenance of the beneficiaries and, since they entered upon their duties, the trustees have administered the trust or trusts as, what they term, "discretionary trusts." Their position is stated to be in their reply brief (p. 24) "that the trustees must expend whatever income is needed by the life beneficiaries, *546 when it is so needed, and that in order to do this they must hold, temporarily, income not needed in any year by the life beneficiaries. The accrued income in their hands is alleged to be a temporary accumulation, a temporary surplus, which they allege they must hold to meet future needs of the beneficiaries. Petitioners contend that the trustees are custodians and conservators of any accrued and unexpended amount of income received in each year and that such "accumulation of a temporary surplus" is not invalid nor an illegal accumulation within the meaning of section 16 of the New York Personal Property Law. In brief, petitioners contend that there is to be found in the will an implied discretion*1039 in the trustees to hold the trust income in any year for future distribution and in that sense accumulate it.

Two of the beneficiaries of the trust, or trusts, and the trustees are the same individuals. It is easy to understand the procedure followed by the trustees in holding the trust income in the absence of demand for distribution or need therefor. However, it is not the beliefs of the interested parties that control, but the terms of the will. Commissioner v. Guitar Trust, 72 Fed.(2d) 544. Also, the mere fact that the parties have consented to the withholding of the trust income as it accrued can not affect or change the applicable law, i.e., the local law and the Federal income tax law. In re Israelites Estate,279 N.Y.S. 699; Hubbell v. Burnet, 46 Fed.(2d) 446.

The testator's intent with respect to the trust income is clearly expressed in the will. It appears that decedent drafted his last will carefully. There is no ambiguity. At the time he executed his will in 1928, it appears to be a fact that none of the petitioners were minors. It also appears that all were competent. Under the law of New York State*1040 a direction to a trustee to accumulate income is forbidden except in the case of a minor. Personal Property Law, McKinney's Consolidated Laws of New York, vol. 40, sec. 16; In re Rogers,48 N.Y.S. 181; In re Hartman's Estate,215 N.Y.S. 802; In re Hoyt,101 N.Y.S. 557; Hendricks v. Hendricks,3 App.Div. 604; affd., 154 N.Y. 751; Yukon Alaska Trust,26 B.T.A. 635, 641; Commissioner v. Morris, 90 Fed.(2d) 962; Morris v. Morris,272 N.Y. 110; 5 N.E.(2d) 56. The will contains no express direction to the trustees to accumulate income. No provision is made for any disposition of accumulated income. There is no express limitation on the trustees to distribute income each year only in accordance with the needs of the beneficiaries. Nor can it be concluded that there is any such implied discretion in the trustees because the testator adopted the phraseology "to apply to the use of" the beneficiaries, instead of "to pay to" the beneficiaries. Article fourth, paragraph 1, of the will is not applicable, since all the petitioners were*1041 adults. The courts of New York have construed the phrase *547 "to apply to the use of" to be equivalent to the phrase "to pay" where the intent of the testator is not found to be otherwise in the terms of his bequest. Moore v. Hegemen,72 N.Y. 376, 378; Gasquet v. Pollock,37 N.Y.S. 357; Scharmann et al.,63 Misc. 640; 118 N.Y.S. 687; In re Van Hoesen's Estate,273 N.Y.S. 540. It is concluded that the testator did not give and did not intend to give the trustees any express or implied discretion to accumulate the trust income.

It is evident that the position taken by the petitioners is founded upon the absence in the will of any direction as to the time when trust income is to be applied to the use of the beneficiaries, i.e., the will does not direct the trustees to dispose of the income at the end of each year or at any time within the year. The beneficiaries, except Regina Marx, and the trustees, are the same individuals. It has suited the convenience of the parties, according to their needs, to let the trust income be retained by the trustees. The parties have stipulated that*1042 none of the trust income so retained by the trustees was "available" to any of the beneficiaries in the taxable years. The use of the term "available" in the stipulation can be regarded only in the sense that the income was not paid to the beneficiaries because they agreed to let the trustee hold it. It is another matter whether the trust income was legally available to the beneficiaries. It is a matter for legal construction, also, whether the trust income was "currently distributable" to the beneficiaries so as to be taxable to them within the meaning of section 161(a)(2) and section 162(b) where the testator did not expressly direct the trustees to distribute the income periodically at fixed times. The mere fact that the beneficiaries agreed that the income be held by the trustees can not change the application of the law with respect to taxation of the income in any year. Also, the beliefs of the interested parties do not control, but the terms of the will must govern in determination of the question involved. Cf. Commissioner v. Guitar Trust, supra;*1043 Hubbell v. Burnet, supra.The essential question is whether the beneficiaries had a legal right to receive accrued trust income at the end of each year in the absence of an express direction in the will that the trustees apply the trust income to the use of each beneficiary at the end of each year, as will be developed hereafter.

It is the right of the petitioners, beneficiaries, to receive the trust income at the end of each year, not the actual or constructive receipt of such income during the year, which fixes the liability for the tax thereon, as income "currently distributable" during the year under sections 161(a)(2) and 162(b), supra. In Freuler v. Helvering,291 U.S. 35, it is stated, "The test of taxability to the beneficiary is not receipt of income but the right to receive it." See also, Mary Clark de Brabant,34 B.T.A. 951, 955. This brings us to the question *548 of ownership of the income in question. The testator directed the trustees to divide the principal of the trust into three equal shares (physical division being left in the discretion of the trustees except when necessary to make a distribution*1044 of principal, article IV, paragraph II), and to dispose of income by applying the income of each share set apart for each beneficiary, to the use of the beneficiary for life, or, in the case of Leonard Marx, until he attained thirty years of age. The trustees opened separate income accounts in the name of each beneficiary in the "Estates General Ledger" and at the end of each year credited to each account the one-third of the annual, net trust income, plus one-third of total capital profits and minus one-third of capital losses. (Cf. Nellie S. Alexander,36 B.T.A. 929, on the matter of deduction of capital losses from distributable trust income.) Thus, it is clear that the trustees kept each year's net income separate from the principal of the trust or trusts and each beneficiary could ascertain how much of the trust income was available for distribution at the end of each year. The income was available for the use of the beneficiaries; it could be assigned without affecting the trust; it could be reached by their creditors. It is also clear that each beneficiary had a vested, beneficial interest in the income of one-third of the trust property. Reference*1045 to decisions of the courts of New York, as well as the terms of the will, support the conclusion, which is made, that ownership of the net income of one-third of the trust property vested in each beneficiary upon its being received by the trustees. This conclusion is dictated, further, by the New York law under which a postponement of such vesting for however short a time would offend the statute against unlawful accommulations. Each beneficiary was the owner of the entire income and it was available to him and he was entitled to have it applied to his use by having it paid over as it accrued. In re Keogh,112 App.Div. 414; 98 N.Y.S. 433; Smith v. Parsons,146 N.Y. 116; 40 N.E. 736; Scharmann et al., supra;Gasquet v. Pollock, supra;Curtis v. Curtis,185 App.Div. 391; Hendricks v. Hendricks, supra.The gift of income to the beneficiaries was not just so much of the net income as the trustees determined to apply. Cf. *1046 New York Trust Co. v. Black,164 N.Y.S. 967; Matter of Connolly,130 N.Y.S. 194; Schmidt's Estate,240 N.Y.S. 206.

It has been established that "the one who is to receive the income as the owner of the beneficial interest is to pay the tax" under the provisions of the revenue acts imposing upon the beneficiary of a trust the liability for the tax upon the income distributable currently to the beneficiary. Also, it has been held that the term "income currently distributable to the beneficiary" is merely descriptive of the one entitled to the beneficial interest. Blair v. Commissioner,300 U.S. 5. If the trust income is the property of the equitable life tenant at the *549 moment it is earned, then the liability for the tax is on the equitable life tenant and not on the trustees, Sewell v. United States (Ct. Cls.), 19 Fed.Supp. 657; whether paid over to him or not, Lynchburg Trust & Savings Bank v. Commissioner, 68 Fed.(2d) 356.

There is no question involved here whether the trustees could lawfully hold the trust income as it was received in each year for*1047 future distribution to the beneficiaries. As far as can be discovered from review of New York court decisions referred to by the parties, the temporary holding of the trust income by the trustees was not illegal under New York law in the absence of any direction in the will to accumulate income contrary to law. As stated in Bogert, Trusts and Trustees (1935), vol. I, p. 665, par. 217:

A cestui cannot by his consent validate a provision for accumulation which violates the statute and concerning which another party has a right to object; but, if there is no accumulation clause in the trust instrument, a cestui and trustee may agree that the trustee shall retain for a time income which he is under a duty to pay over or apply. This latter type of agreement is in effect creating a new trust by agreement between cestui and trustee.

But the apparent agreement between the parties in these proceedings, as cestuis and trustees, in their respective capacities, effecting a new trust of the undistributed income does not affect or alter the determination of the main question in these proceedings. Each beneficiary owned his share of the trust income as it was received by the trustees and*1048 the trustees were in effect applying such income to the use of each beneficiary by holding it in trust just as effectually as though it were paid over to each beneficiary. Cf. Ordway v. Wilcutts, 12 Fed.(2d) 105. The procedure adopted voluntarily was equivalent to the beneficiaries receiving the income at the end of each year and paying it over to the trustees in a new trust or trusts. Further, the trustees' oral declaration that they held one-third of net trust income, personal property in praesenti, for each beneficiary creates express trusts for the three beneficiaries and the beneficial interest is considered as vested in each cestui. Rollestone v. National Bank of Commerce,299 Mo. 57; 252 S.W. 394. Under such circumstances the trust income held is not taxable to the trustees. Cf. Lynchburg Trust & Savings Bank v. Commissioner, supra.

It is held that the net trust income is taxable to each petitioner, Leonard, Emily, and Regina Marx, for the taxable years under the provisions of section 162(b), supra. Respondent is sustained on this issue.

Issue 2. - The second issue relates to the*1049 fiduciaries and affects Docket No. 88594. Respondent has construed the third article of the will as creating a single trust for three beneficiaries. Petitioners contend that the will creates three separate trusts. We believe the evidence shows that the trustees have construed the will as creating *550 three trusts, the fact that income tax returns for 1932 and 1933 were made originally as for one trust, to the contrary notwithstanding. It is stipulated that the attorney for the trustees became aware of the procedure of filing one return on the basis of one trust for the first time in October 1934, and that thereafter, upon advice of counsel, the trustees filed three amended returns for three trusts for each taxable year. On the basis of three trusts the total income tax for 1932 was less than the tax computed on the basis of one trust and, simultaneously, the trustees filed a claim for refund of part of the taxes paid on the original return filed for 1932. For 1933, the tax liability on the basis of three trusts was more than on the basis of one trust, and simultaneously the trustees paid an additional tax. However, when the respondent indicated an intention to tax the*1050 trust income for 1933 to the beneficiaries (issue 1), the trustees, on February 14, 1936, filed a claim for refund of taxes paid by them on trust income. It appears, therefore, that the question involved in issue 2 is important to the petitioners, because, if three trusts were created, income taxes on them, as fiduciaries, are less than if there was one trust. It is noted that the petition of the fiduciaries, Docket No. 88594, is from a deficiency for the year 1933 only.

Whether or not an instrument creates one or several trusts depends on the testator's or donor's intention as derived from the terms expressed in the instrument. Huntington National Bank v. Commissioner, 90 Fed.(2d) 876. The terms of the will of Joseph Marx leave little room to doubt that he intended to create by the third article of his will three separate trusts for the benefit each of his wife and two children. The residuary estate was conveyed to the trustees with the direction "to divide the principal thereof into three equal shares, one for my said wife, Regina Marx, one for my son, Leonard M. Marx, and one for my daughter, Emily Marx, and to dispose of the principal and income of said*1051 shares as follows: * * *" Thereafter, the testator refers to each share as "the share set apart for" the named beneficiary for her or his use, during life, (or, in the case of the son, until he is thirty years old.) The gift of income to each beneficiary is the "income of the share set apart", and not one-third of the income of a trust. In the fourth article the trustees are authorized, in their discretion, to "keep the trust property in one or more consolidated funds in which the separate shares shall have undivided interests." (Italics ours.) That is, the trustees are not required to make physical division of the trust funds, except when necessary for distribution of principal, and if the separate shares are kept in one jund in solido, each beneficiary has an undivided interest in the fund. The term "trust funds" is used in the will rather than "trust fund" and the term "trust" as opposed to "trusts" does not appear except that the residuary estate is given "in trust" to *551 be divided into three equal shares. Each undivided interest runs for a separate and distinct period, i.e., the life of each beneficiary, or, in the case of the son, until he is 30 years*1052 old. It seems reasonable to construe the will as showing an intent in the testator to create three trusts running for each single life. Turning to the limitations over of the remainders, each share or trust is kept separate and apart so as to dispose of and terminate each trust in and of itself. The testator directed that at the end of each life estate in each share "the principal thereof" shall be distributed by the trustees to designated remaindermen. The principal of the share set apart for Regina Marx is to be divided into two parts upon her death and final disposition of the principal of each part of the one share is provided. Final disposition of each of the other shares is provided for in similar fashion. In brief, the provisions for disposition of the remainders over follow the same division of three separate trusts, prescribing the ultimate disposition of each principal, separately, to designated remaindermen. This is inconsistent with the idea of a single trust.

The difficulty presented is that the trustees did not make any physical division of the trust funds into three separate principals. The parties have stipulated that the nature of the trust funds or*1053 property:

* * * was such as to make physical segregation of the assets inadvisable and in some cases impossible. Therefore, the trustees did not separate the property received by them pursuant to said Article "Third" of the will into three separate and distinct parts but kept said property intact.

It is evident that actual separation of the property received by the trustees into three shares was not necessary because the interests in the accruing imcome of each share are equal and several. However, physical separation of assets is not indispensable or prerequisite to the existence of several trusts. A trust may be created in any property which is of value, real or personal, legal or equitable. Perry on Trusts (7th Ed.) pars. 67, 68, pp. 52, 53. An undivided interest in property may constitute the corpus of a trust. United States Trust Co. v. Commissioner,296 U.S. 481. "Where there is an intention to create separate trusts, the fact that 'the trusts' are 'kept in one fund' does not necessarily defeat the intention and require the conclusion that there is but a single trust." *1054 In re Colegrove's Estate,221 N.Y. 455, 459; 117 N.E. 813; Vanderpoel v. Loew,112 N.Y. 167, 180; 19 N.E. 481, 484.

It is concluded that the shares and interests of Regina, Emily, and Leonard Marx are several, although the trust property was undivided, which was unnecessary. There is a separate and distinct trust as to each share in which each beneficiary had an equitable life estate; an undivided one-third interest. As pointed out in Commissioner *552 v. McIlvaine, 78 Fed.(2d) 787, the matter that gives concern is income rather than physical possession of the property that produces it, and "the receipt of the entire income (by the trustees) will be deemed in equity the receipt of it for the three undivided trust estates." It follows that the trustees' tax liability must be determined on the basis of three trusts, i.e., income of the trust property, where it is properly taxable to the trustees (see issue 1), is taxable to three trusts and not to a single trust, notwithstanding the property was not segregated. On this issue, petitioners are sustained.

*1055 Respondent calls attention to several cases where it has been held that a single trust was created: Johnson v. United States,65 Ct.Cls. 285; certiorari denied, 278 U.S. 611; John J. Rauers et al., Trustees,28 B.T.A. 516; State Savings Loan & Trust Co. v. Commissioner, 63 Fed.(2d) 482; Margaret B. Sparrow,18 B.T.A. 1; Langford Investment Co., Trustee,28 B.T.A. 222. We do not think those cases are controlling here. Each case must be decided with reference to the particular trust instrument involved. This proceeding comes clearly within the general principles discussed in United States Trust Co. v. Commissioner, supra, which is controlling here.

Issue 3. - The third issue arises out of the deficiency determined in Docket No. 88595. The material provisions of the Marian House trust executed by Emily Marx, petitioner, are set forth in the findings of fact. At the outset, it is pointed out that the question presented is whether all or part of the sum of $3,500 paid to the guardian of Marian House pursuant to the new trust, on December 30, 1933, is taxable*1056 to the settlor, Emily Marx, or to the guardian of Marian House. Petitioner errs in arguing that the stipulation of facts forecloses any consideration by this Board of the question in its entirety. Petitioner would circumscribe the question in a manner not warranted by anything in the stipulation of facts. The parties may not limit the jurisdiction of this Board by any manner of posing a question in their briefs. Petitioner's counsel errs in endeavoring so to do.

Petitioner's theory is that she assigned property to the Marian House trustee, consisting of part of her equitable interest in the Joseph Marx trust to the extent of $3,500 per year. If this theory of petitioner is correct, a point we do not now decide, then only that part of the sum of $3,500 which in fact accrued after the date of execution of the assignment is taxable to the assignee. Income accruing to the interest of Emily Marx in the Joseph Marx trust prior to December 15, 1933, is clearly the income of Emily Marx (see issue 1, above), for which she is liable for tax notwithstanding the later assignment thereof. The cases controlling on this phase of the question are *1057 Edith H. Blaney,13 B.T.A. 1315; Robert G. Dodge,29 B.T.A. 632; William Ernest Seatree,25 B.T.A. 396. The parties have stipulated that the net income of the Joseph Marx trust for Emily *553 Marx was $6,763.22 for the year ending December 31, 1933. The parties have presented no facts, stipulated or otherwise, to show what part of said income accrued or was received by the Joseph Marx trust trustees prior to December 15, 1933. Lacking evidence to prove that any part of the sum of $3,500 was received by the trustees of the Joseph Marx trust after December 15, it is held that the petitioner, Emily Marx, is taxable upon the entire amount, in spite of the subsequent assignment thereof.

Upon this conclusion, there remains no further question in this proceeding for decision with respect to the effect of the assignment of December 15 on petitioner's income tax liability for the year 1933.

Decision will be entered under Rule 50 in Docket Nos. 83831, 83832, 88593, 88594, and 88595. Decision will be entered for the respondent in Docket No. 83833.