The opinion
Opper, J., dissenting: This case seems to me to present another aggravated example of the sterility of attempts 1 to mate peculiar local property law with a system of uniform national taxation, and particularly of the impossibility of reconciling the antique law of community property with such modern concepts as those exemplified by Helvering v. Clifford, 309 U. S. 331 . See 1 Paul, Federal Estate and Gift Taxation, sec. 1.09; Ray, “Proposed Changes in Federal Taxation of Community Property,” 30 Calif. Law Review 397, 407; Mr. Justice Douglas, dissenting in Commissioner v. Harmon, 323 U. S. 44, 49 .
It would be bad enough if the property earning this income were community property, considering that “It has been said, with respect to Louisiana, that ‘adherence to the theory of the wife’s vested interest amounts to little more than lip-service, because neither the wife nor her creditors can exercise any control over the community property until dissolution of the community.’ ” Paul, op. cit., note 72.
But here the income was produced by the husband’s separate property, with respect to which even in community property states there is no claim of ownership by the wife. The domination and control by the husband, extending even to the power to sell the property unconditionally, is thus infinitely more complete than in Helvering v. Clifford, and a result which fails to tax him on the income seems to me fundamentally irreconcilable with the principle of that case. It certainly furnishes no satisfactory basis for arriving at a different result "with respect to oil income in Louisiana from that obtaining in the neighboring State of Texas. Crabb v. Commissioner (C. C. A., 5th Cir.), 119 Fed. (2d) 772.
Arnold, •/., agrees with this dissent. See e. g., Estate of James E. Waters, 3 T. C. 407 ; Stella Wheeler Bishop, 4 T. C. 591 ; George K. Brennen, 4 T. C. 1260 .