dissenting in part: I agree that petitioners received income to the extent of the cash distributed in the tax year and that they are taxable on it under both sections 162 and 22. But it seems to me highly questionable that the unliquidated share in the mortgage was “currently distributable” under 162 or constructively received under 22.
Income was to be distributed semiannually, pursuant to the trust instrument, only to the extent that the trustees found it “practical and convenient.” The parties have stipulated that no part of the mortgage allocated to income was “paid or credited to either petitioner,” except for an installment received, and distributed, in cash. It is easy to understand why the trustees did not find it either practical or convenient to distribute the balance, but I have difficulty in ascertaining that the trust instrument made income “currently distributable” if they did not. Whether this also follows where the trustees insist that the distribution can and should take place, as in Estate of Austin C. Brant, 44 B. T. A. 1306, need not be disposed of here.
In Theodore R. Plunkett, which the Court follows, the Massachusetts decree had ordered a distribution “forthwith,” and this was made in cash, most of it immediately. No one could say that this was not a current distribution. That is what I conceive to be the distinction from the present facts.
This reasoning would, of course, require an opposite conclusion on the last point.
Smith, agrees with this dissent. Murdoch, J., I agree with the dissent except for the first sentence thereof.