¶1dissenting: I cannot agree with the conclusion reached by the prevailing opinion that since in 1956 the attempted gift by George to Marie was declared void, the cash and value of the properties he transferred to her in 1955 are includible in her gross income in that year. Section 102 of the Internal Revenue Code of 1954 specifically provides that gross income “does not include the value of property acquired by gift.” Whatever rights or claims Marie had to the property in 1955 were “acquired” by her by gift. If the exclusion of section 102 of the Internal Revenue Code of 1954 is inapplicable to the cash and property transferred by George to Marie, it would follow that Marie did not hold the property in 1955 under a claim of right. In James v. United States, 366 U.S. 213 (1961), the opinion of the Chief Justice considered inconsequential “that an embezzler may lack title to the sums he appropriates while an extortionist may gain a voidable title.” In the instant case, therefore, it is inconsequential whether George’s gift of cash and property to Marie was void or voidable because of his lack of competency to make a valid gift. At the end of 1955 Marie had the property under her free dominion and control and thus under the rationale of the J ames case had a claim of right thereto which was acquired by gift, a type of receipt specifically excluded from the definition of income. If the reasoning of the prevailing opinion is followed to its logical conclusion, the value of any property received as a gift should be included by the recipient in income in the year so received, since at some subsequent date, prior to a statute of limitations barring its validity being attacked, the gift might be declared to be void. Applying James v. United States, supra, to the instant case, I would hold that Marie received no income in 1955 from George’s transfer to her in that year of cash and properties, her claim of right thereto being as a gift.
¶2I would not hold that Marie received income in 1956 from the forgiveness of indebtedness. The facts show that the judgment of the District Court was entered in accordance with an agreement between the parties to settle the case. The agreement of the Royal Trust Company to accept the stock and real estate valued at $48,445.90 in full satisfaction of the judgment was as much a part of the settlement as was Marie’s agreement to the entry of that judgment. Since prior to the entry of the judgment, there existed an agreement between the parties to the suit as to the amount the defendants (the petitioners herein) would pay to plaintiffs, no actual indebtedness in excess of the agreed amount of the payment was created by entry of the judgment. Cf. N. Sobel, Inc., 40 B.T.A. 1268 (1939).