concurring: The conclusion reached here seems to me entirely sound, but I am doubtful whether the first point is properly founded on Blair v. Commissioner, 300 U. S. 5. The scope of that opinion has been radically narrowed by Harrison v. Schaffner, 312 U. S. 579. Those two cases, as well as such decisions as Helvering v. Horst, 311 U. S. 112, deal with the vexatious and intricate question of the validity for tax purposes of anticipatory and gratuitous transfers of future income. If decedent’s assignment of the prospective rents without a conveyance of the property which produced them had been a gift, I think we should have had to deal with the question left open in Harrison v. Schaffner, since decedent concededly failed to part with the income for the full term of his estate, as in the Blair case. In the Schaffner case the Supreme Court said:
* * * Even though the gift of income be in form accomplished by the temporary disposition of the donor’s property which produces the income, the donor retaining every other substantial interest in it, we have not allowed the form to obscure the reality. • * •
And, as we pointed out in Herbert B. Graf, 45 B. T. A. 386:
* * * The Court said in the last paragraph of the Schaffner opinion that future decisions will have to determine precisely where the line shall be drawn between gifts of income-producing property and gifts of income from property of which the donor remains the owner * • *
When, however, we come to deal with transfers for a valuable consideration as in this case and in Herbert R. Graf, supra, a different situation arises. It is then “unnecessary to determine just exactly how many incidents of ownership * * * were acquired * * * since the taxing acts are not so much concerned with the refinements of title as with the actual command over the income which is taxed and the actual benefit for which the tax is paid.” Herbet R. Graf, supra.
A more satisfactory ground for the decision in the present proceeding would seem to me, by viewing the transaction as a whole, to recognize that the decedent had acquired a wasting asset for which he and his estate were entitled to take deductions for depreciation. In such a situation the payments received and the deductions allowed, being both for the life of the annuitant, would offset each other. H. Edward Wolff, 7 T. C. 717. And even though the petitioner estate happens to have been permitted a deduction based upon the annuitant’s claim, any basis thereby acquired for the estate is shown here to have been exhausted. The facts show that the amount allowed as a deduction for the annuitant’s claim was $9,194.05. Making the reasonable assumption that the estate has paid the required $1,200 each year for the nine years following decedent’s death, the total paid to the end of the year 1941 was $10,800. Any benefit conferred upon the estate by the permitted deduction had thus been used up before the beginning of the present tax year, with the consequence that the process of exhaustion is continuing beyond the period for which any claim has been allowed. If the proposed deficiency were disapproved on that ground, the depreciation being exactly equal to the proposed addition to income, H. Edward Wolff, supra, there would have been no necessity for mentioning the complicated question lurking in the Court’s disposition of the first issue.
Murdock and Kern, JJ., agree with the above.