¶1dissenting: Being unable to agree with the prevailing Opinion on the first point, I respectfully dissent.
¶2Where an inter vivos gift is complete when made, as distinguished from transfers made to take effect in possession or enjoyment at or after death, only the value of the property actually transferred by the decedent is includible in the gross estate. The taxable event here was the completed inter vivos gifts of stock by the decedent. “Irrespective of all other considerations, property to be includible must have been transferred.” Commissioner v. McDermott's Estate, 222 F. 2d 665. The stock dividends were not transferred directly or indirectly by the decedent since they were paid after the completed gifts were made, and then out of current earnings.
¶3“The dominant purpose [of the statute] is to reach substitutes for testamentary dispositions and thus to prevent the evasion of the estate tax.” United States v. Wells, 283 U. S. 102. The interest which the decedent had as a stockholder in the 774 shares transferred by her was a capital interest evidenced by the stock certificates. Eisner v. Macomber, 252 U. S. 189. The transferees acquired that interest under the completed inter vivos gifts and they alone were entitled to future accretions resulting from stock dividends and other distributions on the stock. Such rights were at no time after the transfers subject to disposition by the transferor.
¶4Respondent says that failure to sustain his determination here would be tantamount to “opening the door and throwing the key away” to section 811 (c). So be it! If Congress has left the door open, it is not our function to close it. Burns v. Commissioner, 177 F. 2d 739.