OPINION.
Murdock:The Commissioner determined deficiencies in income tax of the petitioners for 1934 by including in their income the income of trusts which they had created. The only issue for decision in each case is whether the income of the trusts is taxable to the grantors. The facts are found as stipulated by the parties.
Alfred C. Berolzheimer created a trust on May 2, 1932, for the benefit of his son born on April 25, 1925. The trust was irrevocable but was to terminate on January 2, 1941, or upon the death of the grantor or the beneficiary, whichever should occur first. The grantor named himself trustee. The trustee was to apply to the use of the son “at such times, in such amounts and in such manner as said Trustee may in his uncontrolled discretion decide, so much of the net income from this trust fund as in the sole and absolute discretion of the Trustee may be necessary and proper for the maintenance, education and well-being of said Kenneth Berolzheimer and shall accumulate the balance of such net income for said Kenneth Berolzheimer, if any.” The trustee could also use principal, if necessary, for the needs of the beneficiary. The accumulated income was to go to the beneficiary upon termination of the trust and the corpus was to go to the grantor or his estate. Stock dividends, *646rights, capital disbursements, and proceeds of sales or dispositions of assets were to be a part of the corpus.
The trustee was given power to manage, invest, reinvest, retain, sell, exchange, vote, and otherwise deal with the assets of the trust as he thought best. He was not limited to the investments by fiduciaries fixed by the laws of New York and he was not to be liable for loss resulting from the investment or retention of the trust funds.
The donor transferred property to the trust in 1932 and all of the income of the trust for the year 1934 was paid to or accumulated for the beneficiary. The gross income for 1932 consisted of interest in the amount of $4,224.98 and dividends in the amount of $10,270. The net income was $13,919.17, of which $9,600 was distributed for the use of the beneficiary and reported by him, and the remainder was retained as accumulations by the trust and reported by it.
The Commissioner, in determining the deficiency, included the $13,919.17 of trust income in the income of the grantor, with the explanation that his action was in accordance with section 166 of the Revenue Act of 1934.
The respondent, in his brief, makes no argument that section 166 has any application here. The section applies to revocable trusts and clearly does not apply to this trust. The first argument of the respondent is that no trust was created and the instrument was a mere device to reduce taxes. Not only has he failed to cite authorities to support this argument, but the facts in the record also fail to support it. The provisions of the trust instrument upon which he relies to show that in reality there was no trust are those giving control over the corpus to the trustee, those permitting the trustee to take securities in his individual name, those including capital gains in corpus, and those relieving the trustee from liability. Such provisions are not unusual in trusts. This trust was not an empty one like those in Benjamin F. Wollman, 31 B. T. A. 37; William C. Rands, 34 B. T. A. 1107; and Warren H. Corning, 36 B. T. A. 301. Not only was a valid trust created under the laws of New York, but the trust must be recognized for income tax purposes, since it changed materially the interest of the grantor in the income of the corpus. Cf. Jay C. Hormel, 39 B. T. A. 244; Clifford v. Helverinq, 105 Fed. (2d) 586.
The only other argument made by the respondent is that the trust was for the support, maintenance, and education of a minor son and, since the income was to discharge an obligation of the grantor, it is taxable to him under the principle of Douglas v. Willcuts, 296 U. S. 1; Helvering v. Schweitzer, 296 U. S. 551; Helvering v. Blumenthal, 296 U. S. 552; Commissioner v. Grosvenor, 85 Fed. (2d) 2; and Hill v. Commissioner, 88 Fed. (2d) 941. This case comes within the *647authority of those cases. The grantor was the trustee. So much of the income of the trust as he deemed necessary was required to be used for the “maintenance, education and well being” of his minor son. It thus was designed to discharge an obligation which the petitioner owed to the recipient and was not given for the use and benefit of the recipient without any restriction as to its use. Cf. Henry A. B. Dunning, 36 B. T. A. 1222; Ralph L. Gray, 38 B. T. A. 584; Jay C. Hormel, supra. Nine thousand six hundred dollars was distributed in this year for the “maintenance, education, and well being” of the minor son and we are unwilling to hold that any less amount is taxable to the father, although he testified that $2,500 would have been sufficient to properly support, educate, and maintain the son during the year. Commissioner v. Grosvenor, supra. The remainder, which did not have to be so used and was not so used, is not taxable to the petitioner. Martin F. Tiernan, Trustee, 37 B. T. A. 1048; E. E. Black, 36 B. T. A. 346.
Edwin created three trusts on February 23, 1931, one for the benefit of his wife, one for the benefit of his son, and one for the benefit of his daughter. The trusts were similar, for present purposes, to the trusts created by Alfred, except that the income of the one for his wife was not restricted as to use. The son was over twenty-one years of age in 1934 and the father owed him no duty of support, education, and maintenance. The income of those two trusts was not taxable to Edwin. Henry A. B. Dunning, supra; Ralph L. Gray, supra; Jay C. Hormel, supra; Shanley v. Bowers, 81 Fed. (2d) 13; Clifford v. Helvering, supra. The daughter became twenty-one years of age on September 4, 1934. Not more than $3,425.47 of the income of her trust was used to discharge the obligation óf her father to support her, and that amount is taxable to him, since he failed to prove a lesser amount.
Keviewed by the Board.
Decisions will be entered under Rule 50.