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*951OPINION.

Disney:

In this proceeding the respondent filed amended answer and seeks to increase the deficiency originally determined, on the ground that, the gifts involved were of future interests in property. He relies, primarily upon United States v. Pelzer, 312 U. S. 399, referring also to Helvering v. Hutchings, 312 U. S. 393, and Ryerson v. United States, 312 U. S. 405. By separate memorandum he calls our attention to Welch v. Paine, 120 Fed. (2d) 141. The. petitioner, of course, contends that the gifts were of present interests and seeks to-distinguish the above, cases. In substance, the present case involves, trusts under each of which the- trustee holds the trust estate for - the use of two children, is empowered- and directed in his sole discretion to use the principal and income for their education and preparation for their positions in life, and is to convey to each beneficiary upon his, reaching the age of 24 years his undivided portion of the estate then in, the hands of the trustee, the gift, in case of the death, of any beneficiary prior to distribution, to go to the survivor or, in case of the-death- of both beneficiaries, to another. The trustee may in his discretion determine whether receipts and disbursements shall be coni-sidered principal or income. The beneficiaries have no vested interest" in the trust estate,, except to enforce performance of the-trust agreements. Such provisions, the respondent argues, require us to hohl that the gifts are of future interests in property. The petitioner points to distinguishing features in the cases above named.

The trusts in the Pelaer case provided' a definite waiting period of ten years, for during that time the trustee was required to accumulate the income and at the end of- the trust divide the corpus and accumulated income among eight beneficiaries and any others after, borm No discretion was vested,in the trustee. The Hutchingscase expressly recites that it docs not. consider whether the gifts are of future inter*952ests. In the Ryersoncase the trust instrument particularly required income to be accumulated and added to corpus and the Court holds that the participants in the use and enjoyment of the trust principal and income were ascertainable only upon the happening of one or more uncertain events. No such contingencies are entailed in the instant proceeding. In the instant matter, the petitioner points out that the trustee was empowered and directed in his sole discretion to use both principal and income for the education of the beneficiaries and their preparation “to obtain and occupy an advantageous and desirable position in life”; and argues that such discretion in the trustee in effect eliminates the waiting period and leaves no similarity to the Pelzercase, since under general principles of law of trusts the beneficiaries could have compelled the application of at least a minimum amount of the principal and income to their use for the purposes stated in the trust instrument, and that there is no contingency here involved to affect the enjoyment of the gift, as in the Ryersoncase.

Without the element of discretion in the trustee as to use of principal and income, the answer here would plainly be the same as in the Pelzercase, since otherwise here, as there, trust corpus is distributable only in the future. What then is the effect of the absolute discretion vested in the trustee herein as to use of both principal and income for the beneficiaries ? It is patent that this query is not directly answered by any of the cases above analyzed. The only cases bearing directly upon this point which have been called to our attention or discovered by us are Welch v. Paine, supra, Commissioner v. Taylor, 122 Fed. (2d) 714, and Helvering v. Blair, 121 Fed. (2d) 945. In Welch v. Paine, supra, the trust instrument provided that income should become a part of principal and be accumulated and paid, with the principal, to the beneficiaries at the age of 21, and in the case of death of a beneficiary to his heirs at the date when he would have become 21 years of age. The trustee was empowered, however, to advance to the beneficiaries or for their benefit such sums out of their respective shares as he might in his absolute discretion deem necessary or advisable for their support, maintenance, or education. The court concludes that the interests donated were limited to commence in enjoyment at some future date, in keeping with the explanation of the statute contained in the committee reports. The court uses the following language: “The payment of such income is not merely postponed, for accumulation and eventual payment, along with principal, to the beneficiaries in equal shares, rather, the taxpayer reserves the power in his sole discretion to allocate and pay over the income to the beneficiaries in such proportions as he may determine, or to accumulate it.” It is to be noted that the trust instrument there involved does not, as in the instant case, specifically provide that the discretion of the trustee extends to the use of principal for the benefit of the beneficiary; yet *953the same power seems in fact to have been given the trustee, for the decision recites: “The trustee was empowered to advance to the beneficiaries, or for their benefit, such sums out of their respective shares as he might in his absolute discretion deem necessary * * Since this expression follows the recitation that income received was to become a part of principal and accumulated, it appears to be fair to conclude that the “shares” were shares of both principal and income and therefore we discern that discretion extended to both, as in 'the instant case. Moreover, the provision in the instant proceeding that principal could be distributed can not be given any particular weight, for the trustee in his discretion could decide whether receipts accretions (except stock dividends and stock rights) should be added to principal or income, and whether disbursements made should be charged to principal or to income. Iu other words, principal was such, to a large extent, only dependent upon the trustee’s discretion, so the situation is not essentially different from that in Welch v. Paine. In one respect the trust instrument in the present case goes farther to indicate future interests than does the trust instrument in Welch v. Paine — in the latter the death of a beneficiary effected no gift over to any other person, the beneficiary’s heirs becoming beneficiaries, whereas herein there was in case of such death of a beneficiary a gift over to the other beneficiary, or in case of his death, to another not otherwise a beneficiary. This fact, together with the provision that the trustee might in his discretion continue to hold indefinitely any trust corpus, the provision for absolute discretion in the trustee to use either principal or income for the benefit of the trust estate, the provision that during the entire term of the trust the whole title, both legal and equitable, in fee to the trust estate or any part thereof, is and shall be vested solely and absolutely in the trustee and no interest shall be vested in any beneficiary, the particular expression that it is the intent of the settlor that the only interest which a beneficiary shall or may have is personal property only, consisting of the right and power to enforce the due performance of the terms of the trust, the provision restraining any beneficiary from alienating his claimed beneficial or legal right to net income or principal, and the provision that such claimed interest shall not be subject to the liabilities, judgments, or legal processes against the beneficiary nor pass or descend by operation of law — all tend to indicate, we think, that the case here at hand is not to be distinguished from Welch v. Paine and that as therein stated in substance there was no mere postponement, but a reservation of right in the trustees either to pay or not to pay the beneficiaries— a limitation to future enjoyment within the congressional intent.

In Commissioner v. Taylor, supra, discretion on the part of the trustee is also involved, and the conclusion of the court is that there was a gift of a future interest. Therein the trust instrument pro-*954Tided life estates in dioses in action in named children with powers, of appointment and remainders over. Principal should be held for the use and benefit of the beneficiaries and income should he accumulated and paid to the minor beneficiaries at the age of 21 years: unless in the sole discretion of the trustees it should be needed for proper education or support. Although the life estates given to the minors vested immediately, the court considered that fact to be immaterial and in effect emphasized that it was sufficient if the enjoyment was for the future.

That in the consideration of this question effect must be* given to discretion vested in the trustees as to permitting enjoyment of the trust by the beneficiary, as held in the two cases last cited, is further emphasized in Helvering v. Blair, supra. There the court disallowed the $5,GOO exclusions claimed, holding that the value of the interests conveyed was uncertain during the period that the trustees, held discretionary power and that the enjoyment of the trust was suspended. Therein property was conveyed in trust for the period of the longer of two lives, those of grantor’s wife and his son. The instrument provided that during the wife’s life the trust income should be applied to the use of any one or more of eight people (the wife and seven children) and the lawful issue of any children, in the absolute discretion of the trustees. Upon the death of the wife the income was to be applied, to the use of the lawful issue of the grantor and his wife, but without any discretionary power. The instrument concluded with a gift of legal remainders upon the termination of the trust to. the living lawful issue of the grantor and his wife, per stirpes. The court holds that the interests conveyed, are future because of the continued discretionary powers of the trustees to change the original division, rendering it impossible to compute the value of the beneficiary’s share at the time of the original division. It is apparent, of course, that the situation, is not wholly analogous to that .in the instant matter. Nevertheless, the case does give weight to. the element of discretion in trustees as to payment to- beneficiaries. The most recent expression upon this subject is found in Commissioner v. Brandegee, 123 Fed. (2d) 58. Therein trustees were given discretionary power to pay the net income from the trust property, in equal shares, to the beneficiaries, and after payment of mortgages or obligations against property acquired, were required to pay the net income to the beneficiaries. The court considers that tire-trustees were, in effect, authorized to accumulate the income to pay the encumbrances, with discretionary power to pay the beneficiaries, and says:

* * * It is true that the trustees have a discretion to pay the net income to the beneficiaries in equal shares; and the right of the beneficiaries to receive such income at any time the trustees should choose to give it. to them is no doubt; a hind of interest of which a court of equity may take cognizance. See Fulham v. *955Commissioner, 110 F. (2d), 916, 918 (C. C. A. 1st, 1940). But if it may be called a present interest there is still the difficulty that such, an interest is inherently inpa^ahle, of valuation. Helvering v. Blair, 121 F. (2d) 945, 947 (C. C. A. 2d, 1941) [supra]. Where the absolute right of the beneficiaries to enjoyment of the income is postponed until the happening of a future event, a $5,000 exclusion in respect of-each donee is-not allowable to the donor under § 504 (b)- merely because he has invested the trustee with an- immediate- discretionary power to matea advancements. Welch v. Paine, supra; Commissioner v. Taylor, supra; Helvering v. Blair, supra. And this is so whether or not the trustee happens to pay over income to the beneficiaries during the yeaj; in which the gift is made. The nature of the interest of the donees is determined as of the date of the gift, not by what the trustee may subsequently choose to do in the exercise of his discretionary power. See Helvering v. Blair, supra, at p. 947.

If and wh.en the mortgages and encumbrances are discharged in full the interest of the beneficiaries, theretofore contingent upon the trustees’ discretion, is succeeded by a more substantial interest, for the trustees in such event come under a mandatory duty to pay the net income in equal shares to the survivor or survivors of the children and to the.ipsue of any deceased child per stirpes. But viewed from the date of the 1937 gift, such succeeding interest is clearly a “future interest” under the decided cases. The unqualified right to income is limited to commence in use and enjoyment at a future date or time. See definition- of “future interests” in Article 11 of Treasury Regulations 79 (1936 ed.)i. * * *

From tbe above cases we conclude that there is involved in the discretion of the trustees as to the enjoyment of income by beneficiaries, a contingency or postponement requiring enjoyment of the gift to be considered' limited to the future. Only when and if the discretion is exercised, and exercised to permit enjoyment of the gift, is the gift to be regarded as enjoyed. Under the facts herein involved, either or both beneficiaries might die before the exercise of discretion by the trustees, the gift would go to another, and neither income nor corpus benefit either beneficiary or his estate. The answer to petitioner’s view that the- trustee’s failure to devote at least a minimum to the requirements of the beneficiaries would be cognizable in equity, is found in the expression from Eestatement of the Law of Trusts cited by her, for after stating the rule contended for, the Eestatement qualifies it by adding “unless otherwise provided by the terms of the trust.” The trust instrument here, referring to the trustee’s power, reiterates as to “sole discretion”; “according to his own j udgment and discretion”'; “his absolute discretion”; as to exercise of' all of the powers “exercised b}? persons owning similar property in their own right”; “all decisions made-by the trustee in this regard (devoting principal' or income to trust purposes) in good faith shall be final and conclusive upon all parties in interest”'; that the trustee’s judgment (in regard to division and valuation of estate) shall-be “final' and conclusive upon all persons1 interested in the estate.” “The trustee shall be entitled" to full credit and protection for all amounts distributed in the exercise of the discretion hereby given Mm.” Clearly, we think, Ibis trust *956instrument contemplated no control by a court of equity over tlie discretion of the trustee.

In the light of the above decisions, we are of the opinion and hold that the interests conveyed by the trust instrument set up by the petitioner were gifts of future interests in property within the purview of section 504 (b) of the Kevenue Act of 1932 and that the respondent erred in allowing exclusions with respect thereto under the statute.

Eeviewed by the Board.

Decision will be entered under Rule 50.

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