p. 498 of 136 Fed. (2d)
How later courts described this case
- p. 498 of 136 Fed. (2d)
- p. 498 of 136 F. (2d).
Written by the judges who cited it.
Distinguished
Distinguished by Jack H. Vestal and Mary S. Vestal v. United States of America, John T. Daniel and Thase F. Daniel v. United States, 498 F.2d 487 (1974)
The tax court decision of Edward Mallinckrodt, Jr., 2 T.C. 1128 (1943),9 relied on by appellee and the district court, is distinguishable on its facts and does not support the Daniel deduction.
The opinion
Mellott, J., concurring: Inasmuch as the Supreme.Court has denied certiorari in Jergens v. Commissioner, 136 Fed. (2d) 497; 320 U. S. 784 , in which the trustee was held taxable because he had the “power to withdraw all or any part of the corpus of the trust” created by his wife “to alter, amend, or modify the trust as he saw fit, or to revoke it in whole or in part,” I concur in the result reached notwithstanding the substantial doubt which I have that the rule of Helvering v. Clifford, 309 U. S. 331 , should be so extended. It is of course, true, as pointed out in the Jergens case, that “control over income warrants the imposition of the tax incidence of that income upon the person who commands its disposition whether he takes it for himself or not.” (See cases cited in footnote to the Court’s opinion.) If “the determinative consideration is the existance of actual dominion over the property whether it is retained or acquired,” then it would seem that this petitioner is being properly taxed upon the income of the trust created by his father.