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COMMISSIONER OF INTERNAL REVENUE v. SIMS (two cases).

No. 11225.

Circuit Court of Appeals, Fifth Circuit.

April 11, 1945.

Melva M. Graney, Sewall Key, Helen R. Carloss, and Leonard Sarner, Sp. Assts. to the Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and John W. Smith, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for Commissioner of Internal Revenue.

Plomer L. Bruce, of Houston, Tex., and Allan Sholars, of Monroe, La., for taxpayer.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

This case, as to income received from a trust of personal property, corporate stocks, by a married woman living in Texas, presents precisely the same question which was presented in the Porter and Lightner cases (Commissioner of Internal Revenue v. Porter, 5 Cir., 148 F.2d 566), whether the income when received was separate or community property. The settlor of this trust lived in Oklahoma, the trustee lived in Virginia. It was not in terms a spendthrift trust, and we are referred to no statute in either Oklahoma or Virginia which would make it one.

As we have pointed out in the Porter and Lightner cases, however, whether it was or not a spendthrift trust is not material. Here, as there, the trust instrument contains no clause or provision manifesting an intent to make the income from the trust property other than the Texas law makes it, community property. For the reasons given for affirming the decisions of the Tax Court in those, cases, its decisions in these cases are affirmed.

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