OPINION.
Hill, Judge:The first issue is whéther or not petitioner made a deductible gift in each of the taxable years. Respondent contends that the gifts were to an individual and therefore taxable under section 501 of the Revenue Act of 1932. He concedes, however, that the purposes of the work were educational, and thus the issue is limited to whether or not the gifts were “to or for the use of * * * trust, or * * * fund.” Sec. 505 (a) (2) (B), Revenue Act of 1932, as amended by sec. 517, Revenue Act of 1934.
Petitioner contends that the gifts were to a fund or trust and therefore deductible under section 505 (a) (2) (B).
The facts show that petitioner became interested in the work which Wilfred was doing with light. She asked him to submit a budget to her. This budget included the personal living expenses of Wilfred as well as the contemplated expense of furthering “Lumia.” Petitioner agreed to advance $1,000 a month. She deposited the money in a bank under the name of “Light Fund.” She made arrangements for Wilfred to withdraw $1,000 a month from this “fund.” The amount of $12,000 deposited by petitioner each year and withdrawn by Wilfred was included in Wilfred’s income tax return for each year as a gift. USTo income tax returns were filed by or on behalf of the institute. Petitioner included in her gift tax return the amount of $12,000 each taxable year as a charitable gift to the “Art Institute of Light.”
Petitioner’s first contention is that the so-called “Light Fund” was a fund within the meaning of the statute. This contention appears to be without merit. Any deposit of money in a bank could be called a fund, but we do not believe that Congress intended, by the use of the word “fund” in section 505 (a) (2) (B), to include a mere bank deposit. A bank deposit is not “organized or operated” as the statute requires. These and other words of the statute compel us to hold that the “Light Fund” was not a fund within the meaning of section 505 (a) (2) (B).
Petitioner’s second contention is as follows:
Wilfred, in Ms prior conferences with Mrs. Bolton, by showing her the Statement of Aims and the budget and through correspondence with her found on Pages 19-26 of the Record, became a trustee of these funds, pledging himself to spend them for the purposes of the Art Institute of Light and, except for his personal “salary” as director, for these purposes alone. It was as much of a trust and as truly binding on Wilfred as though an attorney had drawn for them a fifty page indenture.
Under the facts of this case we are of the same opinion as was Wilfred when he filed his income tax returns. He there treated the gifts as gifts to him personally. It seems perfectly obvious that petitioner did not intend to establish a trust. She intended merely to see that Wilfred had sufficient money to enable him to live comfortably and to carry on his work. Since the gift was to an individual and not to a trust or fund, it is not a deductible gift and should have been included as a taxable gift in petitioner’s gift tax returns for the taxable years.
The second issue was raised by the amended answer of respondent. He contends that the payments of premiums upon policies of insurance transferred in trust were gifts of future interests. All of the facts relating to this issue were stipulated and briefly are as follows: Petitioner established an irrevocable trust for the benefit of her three sons. The corpus was made up of insurance policies upon the life of petitioner’s husband. Petitioner was the beneficiary under these policies and her husband had assigned all of his rights thereunder to her. She in turn assigned all of her rights to the trustee as corpus of the trust for her three sons. In the trust instrument it was stated that petitioner expected and intended to pay premiums during the life of her husband. During the taxable years she did pay the premiums. The trust instrument provided as follows:
In the event income becomes available before any son reaches the age of twenty-five (25) years, the Trustee is authorized and empowered to pay to or for the benefit of such one until he arrives at such age only so much of the income derived from the share held for such one as it shall deem necessary or proper to provide for his suitable support, maintenance, education and advancement in life, and any income not so expended shall be added to the share from which it is derived. * * *
Respondent contends that these payments of the premiums represented gifts and that they were gifts of future interests. At the hearing petitioner’s attorney stated that he did not desire to file a brief upon this issue.
There can be no doubt that the original gift in trust of the insurance policies was a gift of future interests, since the beneficiaries had no rights under the instrument until they reached the age of 25. Prior to that time distribution of the income and of corpus was in the discretion of the trustee. Thus, the gifts of the corpus and income were gifts of future-interests. Alma S. Hay, 47 B. T. A. 247; cf. Lillian Seeligson Winterbotham, 46 B. T. A. 972. Moreover, the gift in trust of the insurance policies was by the terms of the policies a gift of future interests and the payments of premiums thereon by petitioner were therefore gifts of future interests. Commissioner v. Boeing, 123 Fed. (2d) 86.
Jack L. Warner, 42 B. T. A. 954, 957 (reversed on another point in Commissioner v. Warner, 127 Fed. (2d) 913), holding that payment of premiums on insurance policies constituting corpus of a trust was not a gift of future interests, antedated the decision of the Supreme Court in United States v. Pelzer, 312 U. S. 399. Respondent’s contention that the payments of the premiums were gifts of future interests is sustained.
Reviewed by the Court.
Decision will be entered wider Rule 50.