concurring: I disagree with the necessity for and the conclusion expressed in the majority opinion that petitioner is taxable on the income from the trusts created for the benefit of her minor children.
The trusts were irrevocable and authorized the trustees to pay the income to each child outright, without restriction as to its use, or, in their discretion, to use it for the education, maintenance, and sup*369port of the children. There was thus, I think, no mandate to but only a discretion in the trustees to apply the income to the legal obligation of the petitioner of supporting her minor children.
The question, then, is whether any part of such income was taxable to the petitioner, settlor. The decisions of the courts and the Board do not seem to support a consistent answer to the query. Hudson v. Jones, 22 Fed. Supp. 938; E. E. Black, 36 B. T. A. 346; Martin F. Tiernan, Trustee, 37 B. T. A. 1048; dismissed without opinion, C. C. A., 3d Cir., June 12, 1939; J. S. Pyeatt, 39 B. T. A. 774; Alfred C. Berolzheimer, 40 B. T. A. 645; Jay C. Hormel, 39 B. T. A. 244. See also G. C. M. 18972, C. B. 1937-2, p. 231. In Douglas v. Willcuts, 296 U. S. 1, the Supreme Court held that income of a trust is taxable to a grantor, as constructively received by him, where the application of the trust income to a legal obligation of the settlor is mandatory. But that decision goes no further. It does not reach the case where such application is discretionary in the trustee. See also Helvering v. Fitch, 309 U. S. 149. Unless, therefore, this theory that may be called constructive receipt which supports the Douglas v. Willcuts decision, is applied in construing sections 167 (a) (2) of the Revenue Acts of 1932 and 1934,1 see no legal ground for taxing any of such income to the petitioner, regardless of the fact that it was used to meet her obligation. See Hoeper v. Wisconsin, 284 U. S. 206; Frederick K. Barbour, 39 B. T. A. 910; Estate of Paul F. Donnelly, 38 B. T. A. 1234 (on appeal C. C. A., 8th Cir.); George Washington, Sr., 36 B. T. A. 74. If section 167 (a) (2) can be so construed, then, it seems to me, all of such income is taxable to petitioner, whether the trustees were the settlors or third parties. Reinecke v. Smith, 289 U. S. 172. And that is true, under the unambiguous meaning of the section, whether or not any of the income was so used.
Can this doctrine of constructive receipt be applied in the construction of section 167 (a) (2) ? I think not. The Commissioner apparently does not think so either. See G. C. M. 18972, supra. To so apply it would seem to be an unwarranted disregard of the trust entity. Estate of Paul F. Donnelly, supra; George Washington, Sr., supra; Frederick K. Barbour, supra. If Congress had meant to have this theory applied generally in the construction of section 167, it would seem that it would have said, simply, that the income of a trust should be taxed to the settlor when it could be applied against any legal obligation of the settlor. But nothing in section 167 indicates such an intent. In fact, an intention to limit the application of this rule of constructive receipt to those cases, only, where the income can be used for the payment of premiums on policies of insurance on the life of the settlor, seems to be disclosed by the fact that the section specifically taxes such income to the settlor. See section 167 (a) (3). Expressio vmius est exclusio adterius.