dissenting: The opinion of the majority produces an absurd result. In order to reach this result, the opinion threads its way through a “mine field” of adverse decisions.1 Merely to distinguish those cases does not lead to the opposite conclusion. For that the majority relies on Connecticut Bank & Trust Co. v. United States, 465 F.2d 760 (2d Cir. 1972).
In the Connecticut Bank & Trust Co. case, the “property” sought to be taxed was the proceeds of an action under a wrongful death statute. A claim against a tort-feasor on account of the death of a taxpayer does not arise until the taxpayer dies. On the other hand, a policy of life insurance gives rise to contractual right at the time the policy is taken out. It is “property” with respect to which the decedent may enjoy “incidents of ownership.” In the case of life insurance, the death of the taxpayer merely fixes the time of payment, not the right itself. In a wrongful death claim, it is the death of the taxpayer that gives rise to the cause of action. Until that event, there is nothing.
If the proceeds of the insurance in question had been payable to the estate of the decedent, such proceeds would have been includable as a part of such estate for purposes of the estate tax, notwithstanding any of the so-called contingencies relied upon by the majority. I find it difficult to reach a different result merely because the proceeds are payable to a revocable trust under the complete control and dominion of the decedent rather than directly to him or to his estate.2
Furthermore, I fail to see the necessity for reaching an absurd result in this case. If not includable under section 2042(1), the proceeds of insurance would nevertheless be includable under section 2042(2). The phrase “incidents of ownership” for purposes of this section encompasses the right to designate whom shall enjoy the proceeds of the policy. That right need not be vested or absolute. Terriberry v. United States, 517 F.2d 286 (5th Cir. 1975); United States v. Merchants National Bank of Mobile, 261 F.2d 570 (5th Cir. 1958).
In recognition of the fact that the estate tax provisions likewise are overlapping, in their reach, I also believe that the proceeds would be taxable under section 2041. The designation of the revocable trust as a recipient of the proceeds of the policy, coupled with the power of the decedent over that trust, constituted nothing less than a general power of appointment with respect to the proceeds of the policy. The power was “general” in that it was wholly unrestricted as to whom, how, or where the decedent might direct the proceeds.
I am not persuaded by the argument that the decedent merely had an “expectancy” or that the right of the decedent to direct the proceeds of the policy could be revoked or terminated by his wife, the owner of the policy. In prescribing the reach of the estate tax, the Congress has not been deterred by such considerations. The real question is whether, at the time of his death, the decedent was possessed of the power to direct the proceeds of the policy. It is clear that he was.
Furthermore, there is nothing in this record from which it could be inferred that the decedent’s wife would, contrary to decedent’s intentions, deprive the decedent of his right to designate to whom would be paid the proceeds of the insurance. In order for her to obtain a policy of insurance on decedent’s life, it was necessary for the decedent to consent to and to join in the application for such insurance. The decedent filled out the application form. Logic would lead to the inference that decedent had a voice in the disposition of the proceeds. This was not a plan that could be evolved without the mutual agreement and consent of both the owner of the policy and the insured.
It is clear from the record that the designation of the trust as beneficiary resulted from a prearranged plan which gave decedent the opportunity to direct the proceeds.3 If the right to direct such proceeds had been embodied in the mode of settlement, the proceeds would clearly be taxable as part of the estate. To insulate the selection process by setting up a revocable trust which accomplishes the same result does not change the character of the transaction. See Keeter v. United States, 461 F.2d 714 (5th Cir. 1972); contra, Second National Bank of Danville, Illinois v. Dallman, 209 F.2d 321 (7th Cir. 1954).
Simpson, J., agrees with this dissenting opinion.Terriberry v. United States, 517 F.2d 286 (5th Cir. 1975); Rose v. United States, 511 F.2d 259 (5th Cir. 1975); Estate of Lumpkin v. Commissioner, 474 F.2d 1092 (5th Cir. 1973), revg. 56 T.C. 815 (1971); Estate of Fruekauf v. Commissioner, 427 F.2d 80 (6th Cir. 1970), affg. 50 T.C. 915 (1968); Estate of Connelly v. United States, 551 F.2d 545 (3d Cir. 1977); Estate of Skifter v. Commissioner, 468 F.2d 699 (2d Cir. 1972), affg. 56 T.C. 1190 (1971); Keeter v. United States, 461 F.2d 714 (5th Cir. 1972); Second National Bank of Danville, Illinois v. Dallman, 209 F.2d 321 (7th Cir. 1954); Estate of Sheaffer v. Commissioner, 12 T.C. 1047 (1949); Johnstone v. Commissioner, 76 F.2d 55 (9th Cir. 1935).
Under our tax laws, since Helvering v. Clifford, 309 U.S. 331 (1940), the short-term or revocable trust is regarded as the alter ego of the decedent.
I have no difficulty reaching this conclusion notwithstanding the testimony of the insurance agent set forth in Judge Goffe’s concurring opinion. It is pure hearsay, immaterial to the legal issue presented, and as a substitute for the testimony of Mrs. Margrave, who was not called by petitioner as a witness, has no probative value, Petitioner has the burden, and if Mrs. Margrave’s intent is a material fact, has failed to meet that burden. Her absence raises a presumption against the petitioner.