dissenting: In my opinion the facts in this case clearly bring it within the provisions of section 161 of the Eevenue Act of 1928. That section provides in substance that where “ any part of the income of a trust may, in the discretion of the grantor * * * be distributed to the grantor * * * such part of the income of the trust shall be included in computing the net income of the grantor.” [Italics supplied.] Here we are concerned only with the income for the benefit of minor children. The trust does not specifically name the person or persons who are to receive and spend the income for the minor children except as to the fixed monthly allowances made to them after they became 16 years of age, but the clear and, to my mind, the only reasonable inference is that it is within the discretion of the grantor to receive and use this income as he pleases. Specific provision is made that the judgment of the grantor or his wife that the income was spent for the purposes of the trust is conclusive and may not be questioned. It seems to me that the income here in question is taxable to the petitioner whether we hold that his moral duty to feed, clothe, educate, and maintain his minor children furnishes basis therefor or not. Beading the terms of the trusts I cannot avoid the conclusion that the income “may, in the discretion” of this grantor be distributed to him and, if so, the statute provides that it shall be included in his income.
For the reasons stated I respectfully dissent.