The opinion
Melloxt,
dissenting: I agree that one-half of the income of the trust, less any capital or ordinary losses sustained, is taxable to petitioner under section 167 of the Revenue Act of 1934. It is difficult to reconcile the holding of the majority, that all of it is taxable to her under section 166 of the same act, with the holdings made in such cases as Corning v. Commissioner, 104 Fed. (2d) 329; John Edward Rovensky, 37 B. T. A. 702; Helvering v. Wood, 309 U. S. 344 (Feb. 26, 1940); Daisy Christine Patterson, Executrix, 36 B. T. A. 407; Henry A. B. Dunning, 41 B. T. A. 1101; and Edna B. Elias, 41 B. T. A. 1109.
But even if the majority be correct in holding that the power to effect a distribution is wholly within the control of the grantor, a view which I do not share since I think the restrictions upon the exercise of it have real substance, still the conclusion that the income is taxable to the grantor under section 166 seems to be erroneous. She is taxable with the income of the trust under that section only when the “power to revest in * ⅜ ⅛ [herself] title to any part of the corpus is vested” in her alone, in her in conjunction with any person not having a substantial adverse interest, or in any person not having a substantial adverse interest. The provision of the trust instrument relied upon by the majority authorizes only “Distributions from the income of the Trust Estate.” When this provision is read in conjunction with sections B and C of the trust instrument, shown in the stipulation of facts but not set out in the findings above, it is difficult to understand how the majority can spell out a power in the grantor to revest the corpus in herself. The holding of the majority seems to be predicated upon the assumption that a subservient trustee would distribute corpus to her whenever requested. It may be pointed out, however, that, /no matter how subservient he be, he could only encroach upon the corpus when the income of the trust should be insufficient “for the *234 purposes set forth and the gravity of the situation demands that the aid be furnished” — a situation which did not exist during the taxable years, when the income of the trust was $11,323.98 and $15,395.70, respectively.
Being of the opinion that petitioner is taxable upon but one-half of the income of the trust for the taxable years, I respectfully note my dissent.