specially concurring: I agree with the treatment as to the income tax issue and concur in the result as to the gift tax issue. I would reach the latter result by simply holding that petitioner in 1956 executed an instrument that evidenced and accomplished a gratuitous transfer of property to her sons. Heirs and beneficiaries of an estate always hold transferable title or the right to receive title which constitute “property” within the meaning of the gift tax statute.1 Disclaimers or renunciations by heirs and beneficiaries result in gifts, direct or indirect, because, by the operation of the laws of intestacy or clauses in the wills, title or the right to receive title is transferred or passes to known receivers. It is as if the heir or beneficiary executed a gratuitous assignment of his interest to named parties. This is sufficient under the broad coverage of the gift tax statute.2
The disclaimer or renunciation is not made a gift within the gift tax statute by reason of the fact that the heir or beneficiary waits a long time (even if it is almost a quarter of a century) before executing it. Timing has nothing to do with it. The timing might be something to consider when the effectiveness of the instrument to divest the maker of his property interest is the issue — such as its effectiveness as against the claims of creditors of the heirs or beneficiaries. Obviously, it is not a factor when the issue is the tax upon the admitted passage of the interest of the heir or beneficiary to others, resulting from the disclaimer. I would hold the gift tax applies merely because the disclaimer evidences an accomplished gratuitous transfer under the statute.
I agree that under the Commissioner’s regulation (sec. 25.2511-1(c)), especially the part added in 1958, the timing of the execution of the instrument as well as its validity under State law are to be considered. The majority specifically approves this regulation, in this, its first Court test. I do not share that approval.
In Sanford’s Estate v. Commissioner, 308 U.S. 39, tlie Supreme Court said : “When the gift tax was enacted Congress was aware that the essence of a transfer is the passage of control over the economic benefits of property rather than any technical changes in its title.”
In Smith v. Shaughnessy, 318 U.S. 176, the Supreme Court said:
* * * The language of the gift tax statute, “property * * * real or personal, tangible or intangible”, is broad enough to include property, however conceptual or contingent. And lest there be any doubt as to the amplitude of their purpose, the Senate and House Committees, reporting the bill, spelled out their meaning as follows :
“The terms ‘property,’ ‘transfer,’ ‘gift,’ and ‘indirectly’ [in. sec. 501] are used in the broadest sense; the term ‘property’ reaching every species of right or interest protected by the laws and having an exchangeable value.”4
Senate Report No. 665. 72d Cong., 1st Sess., p. 39 House Report No. 708, supra, p. 29.