The opinion
Mellott,
concurring: Although agreeing with the majority, that the petitioners were not engaged in a trade or business, I am of the opinion that, even if they were, the particular commissions in issue are not deductible. They were paid by the petitioners to themselves in 1931 out of trust corpus, and apparently were never considered by them as deductible items until after substantial deficiencies had been determined against them, the correctness of which they now concede. They had been allowed under section 285 of the Surrogate’s Court Act of New York on the basis of principal received and paid out. They were nonrecurring items, chargeable to and deductible from corpus. If application had been made by them to the Surrogate’s Court ir 1926, when the corpus was paid over to them, they would have been entitled to have received at least 50 percent of the commissions at that time; In Re Bushe, 227 N. Y. 85 , for, under the construction by the New York courts of the section under which the allowances were made, they became entitled to that portion of the allowances immediately upon receipt of the property.
In my opinion the commissions in controversy could not be said to be “ordinary and necessary expenses paid * * * in carrying on any trade or business” even if the petitioners were engaged in a trade or business.
Smith, Turner, and Harron concur in the above.