dissenting: I dissent from the majority opinion as respects the trusts for the settlor’s two children. I do not dissent from the majority view that the trust which petitioner established for his wife, Ruth, is controlled by our decision in Louis Stockstrom, 3 T. C. 255, modified by Stockstrom v. Commissioner, 148 Fed. (2d) 491. I think the Stockstrom case went very far in taxing to the settlor of certain long term irrevocable trusts for his grandchildren the income thereof on the ground that such income fell within the Supreme Court’s decision in the Clifford case. I recognize, however, that our decision in (hat case was in all essential respects affirmed by the Eighth Circuit and that, wherever applicable, it should be followed. Therefore, I do not dissent from the majority view as respects the trust for petitioner’s wife.
I think the two children’s trusts are different, however, and are not controlled by the Stockstrom case. I think they are distinguishable for substantially the same reasons as we held the children’s trusts were distinguishable from the Stockstrom case in J. M. Leonard, 4 T. C. 1271. In that case, in holding that the children’s trusts were pot taxable to the settlors, J. M. Leonard and his wife, who created them, we said:
The respondent places considerable emphasis upon the circumstance that one of the grantors was the sole trustee during the taxable years in question. 1-Ie argues that this factor brings the instant proceedings within the doctrine of Louis Stockstrom, supra. We think the instant case is distinguishable on its facts from the Stockstrom case. In the Stockstrom case the three trusts which were made for the settlor’s three adult children contained powers which enabled the settlor-trustee to shift income beneficiaries somewhat similar to the powers reserved to the grantor in Commissioner v. Buck, supra. There are no such powers granted to the settlor-trustees in the instant case. In the Stockstrom case the seven trusts which were set up for the benefit of Stockstrom’s seven grandchildren, while not granting to the settlor-trustee powers which were as extensive as those contained in the trusts for his three adult children, did grant to the settlor-trustee the discretion to either accumulate the income or distribute it to the beneficiary. These trusts were for the lifetime of the beneficiaries. We construed this power as being broad enough to enable the settlor-trustee to completely withhold the income of the trust from the grandchild primary beneficiary throughout his lifetime and thereby give it to the remaindermen. To quote from the opinion Itself in the Stockstrom case, the settlor-trustee “was not required to distribute any part of the income to any of the beneficiaries during his lifetime." We held that this power over the income, when coupled with the broad administrative powers granted the settlor-trustee over the corpus in these several trusts, caused the income to be taxable to the settlor, Stockstrom. * * *
In the instant proceedings Leonard had no powers to cause the shifting of income from one beneficiary to another such as were present in the Stockstrom or Buck cases. * * * [Emphasis supplied.]
Just so here. The settlor-trustee in these two children’s trusts had no power to shift income from one primary beneficiary to another. All corpus and accumulated income of each of the trusts for the children were to be paid to the beneficiary when he or she reached the age of 45 years, if they had not been paid sooner, within the discretion of the trustee. The powers in this respect are very similar to those in the Leonard case. An examination of the two cases will show that fact. The Leonard case has been followed by us in Alma M. Myer, 6 T. C. 77, and W. L. Taylor, 6 T. C. 201. See also David L. Loew, 7 T. C. 363. It seems to me that the two children’s trusts in the instant case fall within the ambit of the foregoing cases and should be decided as they were decided — for the taxpayer. We have here no mere “temporary allocation of income” among the intimate members of a family group with the corpus coming back to the settlor after a short term such as was present in Clifford v. Helvering, 309 U. S. 331. Here the settlor had no power to ever vest in himself any of the income or corpus of the trust or give it to anyone else, except the primary beneficiary. It is true that the settlor conferred upon himself as the individual trustee very broad administrative powers, but these, of course, had to be exercised in a fiduciary capacity and are not within themselves sufficient to require the taxing of the income of the trusts to settlor-petitioner. See Cushman v. Commissioner, 153 Fed. (2d) 510, reversing 4 T. C. 512. The powers which the trustee reserved to himself as either grantor or trustee in the Cushman case were very broad. This will be seen from the following quotation from the court’s opinion, wherein it said:
* * * the petitioner reserved to himself as grantor power to control retention or sale of trust property and to direct investment and reinvestment of trust funds, and he invested himself as trustee with the extraordinary power of entering into capital readjustments as well as all the ordinary trustee powers, including that of voting the stock held in the trust. Analytically the powers held in the two capacities are, because of those different roles, .different. The powers held as trustee are, of course, held in a fiduciary relationship and must be exercised only in the best interests of the beneficiaries. The power to vote the stock held in trust may not be exercised by the trustee for his own purposes; and where such conduct is threatened, a court of equity will direct the voting of the stock. See 2 Scott, Trusts, § 193.1. * * * [Emphasis supplied.]
Notwithstanding the very broad powers of administration which the settlor in the Cushman case reserved to himself as either grantor or trustee, the Second Circuit held that the income of the trust was not taxable to him under section 22 (a) and reversed the decision of this Court, which had so held in 4 T. C. 512. It seems to me that if the Second Circuit was right in the Cushman case, and I think it was, then the majority opinion in the instant case is wrong as to the two children’s trusts.
I, therefore, respectfully dissent.
ARtjndell and Tyson, JJ., agree with this dissent.