concurring: I do not think it necessary to resort to the principle enunciated in the Clifford case in order to reach the conclusion embodied in the first point* See Helvering v. R. Douglas Stuart, 317 U. S. 154. Section 162 permits the trust to deduct income which “is to be distributed currently,” but contemplates the taxation to the beneficiaries of such income “whether distributed to them or not.” I can not believe that the mere refusal of the beneficiary to accept such income in a given year would be sufficient to relieve him of tax liability under the familiar doctrine sometimes called constructive receipt. See Helvering v. Stuart, supra; Lelia W. Stokes, 28 B. T. A. 1245; Esty v. United States, 63 Ct. Cls. 455. If the acquiescence of the recipient is a condition necessarily implicit in every payment, as I think it is, practically if not legally, cf. Kate R. De Forest, 27 B. T. A. 373, 376; Edson v. Lucas, 40 Fed. (2d) 398. the mere expression of such a condition should not alter the operation of the taxing statute. Helvering v. Helmholz, 296 U. S. 93. And certainly thelre can be no distinction in principle between such “unwitty diversities” of the law as the condition precedent of a request on the one hand and the condition subsequent of an acceptance on the other. Helvering v. Hallock, 309 U. S. 106. Either is founded upon “a right so absolute that it could be said he had turned his back upon funds that were his for the asking.” Walter L. Ferris, 1 T. C. 992, 995. As the prevailing opinion adequately demonstrates, First National Bank of Portland, 39 B. T. A. 828, and A. P. Giannini, 42 B. T. A. 546, do not go to the lengths which would be necessary for a contrary conclusion here, and Elizabeth S. Sprague, 8 B. T. A. 173, incorporates principles long since abandoned in the search for a realistic construction of tax legislation.
Kern, </., agrees with the above.