dissenting: By the instrument executed by the petitioner on January 2, 1921, he sold, assigned, transferred, and delivered to his wife “ an undivided interest in and to a certain contract.” This was an irreA^ocable assignment of an interest in a subsisting contract, the substance of which was a right to receive annually, certain commissions on renewal premiums, as and when such premiums were paid to the company, and the assignment of such interest in that contract absolutely precluded petitioner from ever receiving that part of those commissions so assigned. In the prevailing opinion of the Board it is stated that the petitioner can not “ succeed in this proceeding if the subject matter of his assignment has not come into being.” It appears to me that the subject matter of the assignment here involved was in being at the date of the assignment. The opinion of the court in Woods v. Lewellyn, 252 Fed. 106, is not determinative of the issue here presented. It would be determinative of the issue had the petitioner not made any assignment of his contract and had contended that the renewal premiums received in the years 1921 to 1924, inclusive, were not taxable income to him. But he makes no such contention. Furthermore, I do not think that it is true that the taxpayer’s argument “ must rest upon the theory that the payments were a return of capital.”
I can not doubt that if the respondent had contended that the amounts received under the contract by petitioner’s wife were taxable income to her, such contention would have to be sustained upon the authority of Irwin v. Gavit, 268 U. S. 161. In that case the decedent by will had created a trust and provided for the payment of a portion of the income of the trust to testator’s son-in-law. It was held that such payments were taxable income of the son-in-law. The court quotes from section II of the Income Tax Act of 1913, and states in part:
* * * The language quoted leaves no doubt in our minds that if a fund were given to trustees for A for life with remainder over, the income received *757by the trustees and paid over to A would be Income of A under the statute. It seems to us hardly less clear that even if there were a specific provision that A should have no interest in the corpus, the payments would be income none the less, within the meaning of the statute and the Constitution, and by popular speech. In the first case it is true that the bequest might be said to be of the corpus for life, in the second it might be said to be of the income. But we think that the provision of the act that exempts bequests assumes the gift of a corpus and contrasts it with the income arising from it, but was not intended to exempt income properly so-called simply because of a severance between it and the principal fund. * * *
The language of the statute is equally applicable to a gift.
The tax laws do not contemplate that one shall be taxed on the income of another, even though the primary right to receive that income may have been in him, but irrevocably alienated prior to its receipt.