dissenting: Section 162 (b), I. R. C., provides that the estate or trust shall be allowed a deduction for income which is to be distributed currently by the fiduciary to the beneficiaries, and the beneficiary shall include the amount in his income whether or not distributed. But the Supreme Court has held in Helvering v. Pardee, 290 U. S. 365, that where an annuity has been created (i. e., the annual payment of an amount which is charged against the whole estate payable at all events), there has been a gift or bequest which is expressly exempt from income tax, so that payments in discharge of the annuity are not distributions of income deductible by the estate, even though payable primarily out of income and, in fact, paid out of income.
It seems to me that the payments in the present case are payments under an- annuity within the rule of the Pardee case and other cases following it. Frankel provided by his will that his wife should receive not less than $20,000 per year. He made this a charge upon the entire remainder of his estate. True, the corpus was not to be used unless income from the estate, plus income from her own separate property, was insufficient to make up the $20,000. Also, corpus was not to be used unless she requested it. The fact remains, however, that the testator provided for an annuity for his wife payable in any event as a charge against the whole estate at her demand.
In Frank H. Mason Trust, 47 B. T. A. 346; affd., 136 Fed. (2d) 335, the trust instrument provided for the regular payment of fixed amounts to named beneficiaries from income, with a provision that the trustee should have power and authority to invade the corpus to make up any deficiency. It was held that payments under this provision were not distributions of income and the trust was not entitled to a deduction. Perhaps the chief difference between that case and the present case is that here we have the complication of income from the wife’s separate estate making up a part of the $20,000. In James R. Duncan et al., Executors and Trustees, 34 B. T. A. 999; affd., 91 Fed. (2d) 1012, a deduction was disallowed under somewhat similar circumstances even though the trustees were required to restore the corpus out of excess income subsequently received. In Bay Trust Co., Trustee, 34 B. T. A. 233, the remaindermen were obligated to make up any deficiency in trust income for payment of the annuity. The degree of probability of invasion of corpus is wholly immaterial. Estate of William H. Block, 39 B. T. A. 338, 342; affd., 111 Fed. (2d) 60; cer-tiorari denied, 311 U. S. 658. The above cases and others cited in the report all seem to agree that the only test to be applied is whether or not the distributions are a charge upon corpus to be paid at all events. None of them suggests that a determining factor is the degree of probability that corpus will or will not be invaded.
Cases in which invasion of the corpus is discretionary with the trustee are distinguishable, because there was in those cases no gift or bequest of a fixed amount which was made a charge against the estate payable in all events. It was only payable from the corpus within certain dis-cretions and not absolutely. See John K. Howard, 34 B. T. A. 57; Georgie W. Rathborne, 37 B. T. A. 936; Estate of L. W. Mallory, 44 B. T. A. 249. Here, under certain contingencies, the petitioner had a right to demand payment from corpus.
Sternhagen and Keen, JJ., agree with this dissent.