dissenting: The parties have stipulated that the donor “has at all times been financially able to satisfy all gift tax liabilities with respect to the gifts” made by him, together with interest and penalties. Inferentially it appears that the Commissioner refrained from attempting to collect the additional tax from him because of uncertainty whether the value of the corpus of a trust, created in 1924 for the benefit of his children, together with accumulated income, should be included in gifts made by him in 1934 when he relinquished the power to alter and amend. (Note the contentions of the Government in Sanford’s Estate v. Commissioner, 308 U. S. 39, and Rasquin v. Humphreys, 308 U. S. 54.) It is clear, however, that at least as early as November 16, 1938, the Commissioner knew all of the facts; for on that date and before expiration of the time within which a deficiency in gift tax could have been determined against Moore, respondent sent him a notice of deficiency in income tax for 1934, stating:
* * * it appears that you retained a controlling interest in the corpus [of trusts created for the children] and could do as you pleased with it up to October 18, 1934, when you amended the original deeds and thereby relinquished your right to revest * * *.
These facts are pointed out to show that there was no “liability, as a transferee, in equity” of this petitioner for the tax presently in issue. She recognizes, and the respondent’s argument makes it perfectly plain, that he is attempting to hold her as a transferee, for a “liability at law.” The issue therefore is the narrow one: Has respondent sustained his burden of proving that the liability asserted against petitioner is a “liability, at law * * *, of a transferee of property of a donor” ? I think not.
The transferee provisions of the revenue act were enacted for the purpose of providing a comparatively summary proceeding for the collection of income taxes,1 estate taxes,2 and gift taxes.3 Hulburd v. Commissioner, 296 U. S. 300. The remedy was “in addition to proceedings to enforce the tax lien or actions at law and in equity.” Phillips v. Commissioner, 283 U. S. 589. No new liability was created.4 Cf. A. H. Graves, 12 B. T. A. 124; John Robert Brewer, 17 B. T. A. 713 (appeal, C. C. A., 5th Cir., dismissed). In other words, the secondary liability of a transferee (Oswego Falls Corporation v. Commissioner, 71 Fed. (2d) 673; Florence McCall, 26 B. T. A. 292) is to be determined by applying the principles which would be applied in a District Court if a proceeding were instituted — as it could be (Baumgartner v. Commissioner, 51 Fed. (2d) 472; certiorari denied, 284 U. S. 674) — to enforce a “liability at law or in equity.”
Respondent tacitly admits that the stipulated facts absolve petitioner from any liability in equity, so this need be given no further consideration. (Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371; Bell v. Commissioner, Fed. (2d) 499; Samuel Keller, 21 B. T. A. 84; aff'd., 59 Fed. (2d) 499; Helen Dean Wright, 28 B. T. A. 543; Annie Troll, 33 B. T. A. 598; and Alex Harjo, 34 B. T. A. 467.) Would he be on firmer ground if he had instituted a court action to enforce an alleged liability at law ? I think not. If the action were to hold her upon an alleged liability as a donee under section 510, set out in the opinion of the majority, the statute of limitations5 could, be successfully interposed as a defense; for the liability of a donee is “imposed by Title III,” the same as the liability of a donor. If the action were to enforce a secondary liability for the donor’s tax the additional defense could be made that the donor’s liability had been extinguished by section 607 of the Revenue Act of 19286 (which is substantially the same as section 3770 (a) (2) of the Internal Revenue Code). Commissioner v. Northern Coal Co., 62 Fed. (2d) 742; affirmed per curiam by an equally divided court, 280 U. S. 591; Helvering v. Newport Co., 291 U. S. 485. Stange v. United States, 282 U. S. 270, cited by respondent, does not support his contention that the donor’s liability survived the running of the statute. That case dealt only with the validity, of a waiver,, signed by the taxpayer after the statute had run, and section 607, supra, was not considered. As a matter of fact it had no perti-nency; for the waiver, involving 1914 income taxes, had been signed in November 1922.
It is clear that on February 20, 1940, there was no “liability at law or in equity,” which could have been enforced against this petitioner in a court proceeding, as a transferee of the property of her donor. Unless subsection 526 (f) has the effect of making her liable, as a transferee, merely because of the fact that she is a donee, respondent’s determination, in my judgment, should not be upheld. Did it have such an effect % I think not.
The majority seem to construe section 526 (f) as giving the Commissioner an “extra year for assessment and collection against the donee” because “the term ‘transferee’ includes donee, heir, legatee, devisee and distributee.” If the statute provided that every donee, heir, etc., were ipso facto liable for the tax of his donor, ancestor, etc., its validity would be subject to substantial doubt; for no one should be held for the tax of another except upon legal or equitable principles. Yet that seems to be the effect of the construction given to the section by the majority. They, in effect, construe the word “includes” as being synonymous with “means.” In my opinion it is used as the equivalent of “comprehends” or “embraces.” Cf. Helvering v. Morgan’s, Inc., 298 U. S. 121, and note; Tootal Broadhurst Lee Co., Ltd., 9 B. T. A. 321; affd., 30 Fed. (2d) 239; certiorari denied, 279 U. S. 861. The subsection, like a similar provision in the Estate Tax Act (sec. 900 (e), Internal Revenue Code) was for the purpose of removing any doubt as to the inclusion of the enumerated classes.7 So construed, the section authorizes the Commissioner to proceed against any donee, heir, legatee, devisee, or distributee of the donor or against any other person shown to be a transferee of his property, whether the particular gift, or some later gift, had made him insolvent. If Congress had desired to limit the liability of a donee-transferee to the gift made to him or if it had intended to give the Commissioner the right to proceed against the donee of the gift within four years from the time the donor’s return was due, it could very easily have done so. It would not have adopted the circuitous method of creating a personal obligation for the tax, providing for a three-year period in which it is to be assessed, and then, merely by “including” a donee within the definition of a transferee, expect that the transferee section should be construed as if it provided for the assessment of a liability against the recipient of the property even though he had not assumed the tax and thereby become liable at law and even though no circumstances are shown, which would make him liable in equity.
Sec. 280, Revenue Act of 1928; sec. 811, Revenue Act of 1928 and subsequent acts; sec. 311, Internal Revenue Code.
Sec. 316, Revenue Act of 1926 as amended by sections 402 and 403 of the Revenue Act of 1928; sec. 900, Internal Revenue Code.
Sec. 526, Revenue Act of 1932; sec. 1025 Internal Revenue Code.
In the report of the Committee on finance of the Senate (Rept. No. 52, 69th Cong., first sess., it is stated: “It is not proposed * * * to define or change existing liability. CPhe section [280] merely provides that if the liability of the transferee exists under other law then that liability is to be enforced according to the new procedure applicable to tax deficiencies.”
SEC. 517. PERIOD OF LIMITATION UPON ASSESSMENT AND COLLECTION.
(a) General Role. — Except as provided in subsection (b), [exceptions not applicable] the amount of taxes imposed by this title shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of three years after the return was filed.
607. EFFECT OF EXPIRATION OF PERIOD LIMITATION AGAINST UNITED STATES.
Any tax (or any interest, penalty, additional amount, or addition to such tax) assessed or paid (whether before or after the enactment of this Act) after the expiration of the period of limitation properly applicable thereto shall be considered an overpayment and shall be credited or refunded to the taxpayer if claim therefor is filed within the period of limitation for filing such claim.
§ 13.50 Paul, Federal Estate and Gift Taxation; Paul, Studies In Federal Taxation; 3d ser., p. 20, n. 84.