dissenting: I disagree with the conclusion reached in the foregoing case and with at least one statement of fact appearing therein. This statement of fact, which is the basis of the opinion, is indicated by the underscoring in the two excerpts copied as follows: “ The proof leaves no doubt as to the real ownership of the stock. Similarly, we conclude that though the contract, the breach of which gave rise to the income in question, was negotiated by petitioner and signed in his own name, in this, as in other transactions, he was acting as a trustee or agent for his wife and sister, as well as for himself.” and “ when he [petitioner] entered into the contract [with *163P. W. Chapman & Co.] agreeing to sell the stock he was acting for and on behalf of his wife and sister as well as for himself.”
A thorough perusal of the record will disclose no word of evidence to sustain the statements underscored, and there was no stipulation of any fact. Neither the wife nor the sister was a witness and although the petitioner was sworn and examined in his own behalf, his counsel, purposely or otherwise, failed to ask him any question tending to elicit any such testimony and petitioner volunteered none. No writing or oral evidence was produced for the purpose of showing that the wife or sister ever attempted in any way to constitute petitioner a “ trustee ” or “ agent ” for either of them in this transaction or any transaction looking to the sale of this or any other stock owned by them or either of them; and there was no evidence that the wife or sister ever knew the contract “ which gave rise to the income in question ” was executed or contemplated until after the forfeiture and payment of the “ liquidated damages ” to petitioner.
Apparently the ownership of the stock placed with the escrow agent has been permitted to determine the ownership of the “ liquidated damages ”, although the contract was not for the sale of that particular stock, but any which petitioner might obtain.
Petitioner filed his income tax return, swearing that the $450,000 was his individual income (which was certainly not in conflict with the clear meaning and purport of the contract itself). The returns of petitioner’s wife and sister, made out at practically the same time and apparently under the supervision of petitioner, included no part of that sum as income to either of them. Ordinarily it would require strong evidence to overcome the plain, direct, and unequivocal statement under the three income tax returns and the subscribed oaths of rñe three interested persons. No mere conjecture arising from some remotely related circumstance would suffice.
Eespondent had a right to rely and did rely, he says, upon the tax returns. Petitioner himself so relied and filed his petition before the Board based on that reliance and continued to so rely until the statute of limitations had run in favor of the wife and sister, and then he changed front for his own advantage and to the disadvantage of the Commissioner. The Board and the courts have frequently said such change of attitude under such circumstances and with such a result will not be permitted.
Black agrees with this dissent.