The opinion
*1273 OPINION.
StekNiiageN :
The respondent has treated the trust income as taxable to the settlor under Kevenue Act of 1928, section 167. 1 It is, however, hard to see this without confusing the mother and the children. She was not a beneficiary of the trust during any of the years before us, nor, during those years, could any part of the trust income be legally distributed to her individually, nor could it be held or accumulated for future distribution to her. It could only be and was only distributed to Oscar Handly for the named beneficiaries. The fact that they were minors under guardianship is consistent with their being separate individual taxpayers, Commissioner v. Van Wart, 69 Fed. (2d) 299.
While, as respondent says, the settlor, being the mother of the beneficiaries, is with the father a joint natural guardian and jointly *1274 charged with their care and education (Tennessee Laws of 1923, ch. 41), it is at least doubtful whether her obligation imposes on her a burden as prompt or as absolute as on the father, Owen v. Watson, 157 Tenn. 352 ; 8 S.W. (2d) 484 , and hence whether, short of necessity, the trust operated to relieve her of any natural onus. We think this falls far short of being a substantial economic benefit to her, comparable with that in Burnet v. Wells, 289 U.S. 670 ; cf. Edmund O. Schweitzer, 30 B.T.A. 155 . Whatever power Congress may have, as supported by that decision, to tax such income to the settlor, the language of section 167 does not purport to exercise it.
It is also plain that the settlor had not, during the taxable years in question, the power to revest in herself any part of the corpus, and hence, that section 166 2 is not applicable. Langley v. Commissioner, 61 Fed. (2d) 796.
Reviewed by the Board.
Judgment will be entered tender Rule BO.
Seawell, Adams, and TuRNER dissent.
SEC. 167. INCOME FOR BENEFIT OF GRANTOR.
Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or ill conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is .or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in section 23 (n), relating to the so-called “charitable contribution” deduction), such part of the income of ti' t trust shall be included in computing the net income of the grantor.
SEC. ICO. REVOCABLE TRUSTS.
Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.