dissenting: The main facts in this case were stipulated and the license agreement between petitioner and Swanson Brothers was introduced in evidence. Petitioner called three witnesses — petitioner, S. R. Rudolph, treasurer of Dukane Coffee Corporation and a nephew of petitioner, and B. J. Wells, a member of the partnership known as Swanson Brothers. These witnesses were called by petitioner to testify concerning the circumstances under which it was agreed that the first royalties were to be applied to liquidate Dukane’s debt to Swanson Brothers. Respondent objected to certain testimony being given which might have the effect of modifying the terms of the written agreement. In the interests of learning all the facts pertinent the objections were overruled. There is no ambiguity in. the terms of the license agreement. Hereinafter comment will be made upon the oral testimony.
Petitioner contends that he did not constructively receive the royalties which accrued in the taxable years, that the royalties were assigned to another as part of the agreement made with Swanson Brothers under compulsion in order to get Swanson Brothers to enter into the agreement and that, therefore, the assignment of the first royalties, or the “waiver” of them, constituted consideration from *1148petitioner to Swanson Brothers. Petitioner makes a further contention that the rule of Nelson v. Ferguson, supra, and Julius E. Lilienfeld, 85 B. T. A. 391, applies here. The applicability of the rule in those cases, and similar cases, to this case is not clearly argued, but it appears that petitioner contends that petitioner assigned a property right to Dukane in Ms license agreement and that the royalties in question issued from the assigned property right so as to relieve petitioner, the assignor, from taxation on the royalties.
First, attention must be given to the terms of the license agreement. The only parties to the agreement are petitioner, as “patentee”, and Swanson Brothers, as “licensee.” The agreement is written in the form of an ordinary license agreement. No consideration is recited for the agreement in any specific terms. The licensee is given the exclusive use of the process developed by petitioner witMn a territory and it agrees to pay royalties for the use of the process. The provisions of paragraph II of the agreement are quoted in part in the findings of fact. A fuller quotation is helpful in understanding the terms of the agreement.
II. Licensee agrees to pay to the Patentee a royalty for the use of the said method of processing coffee on each and every bag of coffee roasted by the said Licensee during the continuance of this agreement, * * *. The royalty shall be in an amount equal to one-half of the cost price to the licensee of the number of pounds of coffee saved by the reduction of shrinkage due to the use of this process. * * * [See quotation in findings of fact for the rest of the material provisions of paragraph II.]
The provision for termination of the license agreement is as follows:
V. Upon failure of the licensee to make returns or to make full payments of the license fees or royalties, as herein provided for the period of thirty (30) days from the date above provided for such returns and payment or upon any other default or violation by the licensee of this agreement, the patentee shall have the right and option to terminate this license on thirty (30) days written notice to that effect mailed to the licensee at his last known business address; otherwise this license shall extend for a period of seventeen years from the date hereof.
A complete reading of the license agreement shows that the only consideration was the granting of the license by petitioner. The petitioner had the exclusive right to charge royalties. The grant of a license is adequate consideration for a promise to pay royalties, 48 C. J. 276, par. 447, and ordinarily it is the only consideration moving from a licensor to the licensee. The latter part of paragraph II of the agreement is no more than a provision for the method of payment of the royalties, and it is a direction to the licensee, first, to apply royalties to the liquidation of a debt of another, for wMch petitioner was in no respect liable at law, and, second, to pay royalties thereafter to petitioner, the licensor. Under such terms, and since pe*1149titioner was in no way obligated to pay the Dukane debt, Dukane was no more than a donee beneficiary of the agreement. The contention; made by petitioner that he “waived” the receipt of the first royalties as an inducement to obtain the agreement from Swanson Brothers must be carefully scrutinized, first, because it goes outside the terms of a written contract and, second, because of petitioner’s close relation to the Dukane Coffee Corporation, and one of its stockholders. Petitioner was president of that company and his nephew owned about 20 percent of the stock of the company. Petitioner was not married and his nephew may have been his next of kin.
Some of petitioner’s testimony has been referred to already. But all of petitioner’s testimony, taken as a whole, does not strongly support the contention that petitioner was subject to compulsion in the matter of providing that the royalties should first be applied to reduce the Dukane debt. On direct examination his testimony is that, while he did not originally suggest that royalties be used to pay the Dukane debt, that feature was part of what he considered a good bargain. On cross-examination he testified that he was interested in the matter because “one faction was putting us [Dukane] into bankruptcy, and, in my feeling, bankruptcy was a disgrace, and so that ⅛ the only reason I got into it; not to make money for me. That was not the purpose. It was just because this one faction was bringing it [Dukane] into bankruptcy.” The above testimony, with other testimony, shows clearly that, while petitioner was not very active or interested in the success of the business of Dukane, he wanted to help prevent that company from being forced into bankruptcy. Such evidence, in my opinion, demolishes the petitioner’s contention that he “waived” the first royalties as consideration to induce Swanson Brothers to enter into the license agreement. Petitioner’s testimony indicates strongly that he wanted very much to help Dukane continue in business without going through bankruptcy and that he was willing to contribute to reduction of the Dukane debt because he believed it could be liquidated in about two and one-half years and, since his license agreement had seventeen years to run, the arrangement would be profitable to him in the end, anyway.
On the record in the case, I am of the opinion that the question must be decided solely upon the terms of the license agreement of October 19,1938, and, so considered, I believe it is error to hold that petitioner is not taxable upon the royalties which accrued in the taxable years under the license agreement, for the following reason: There was no assignment to Dukane of any property rights in the license agreement whatsoever. That being true, as I believe is entirely clear, it can not be held that the royalties in the taxable years accrued to Dukane under any property rights transferred to it. Unless such can be concluded, the benefit derived by Dukane was no more *1150than a gift to it from petitioner. In fact, Dukane was Clary’s donee of the royalties or income which accrued under the license agreement between petitioner and Swanson Brothers.
The majority view states that “Petitioner * ⅝ * never had the right to acquire this income or to dispose of it as he saw fit.” This view appears to be dictated by a conclusion that the evidence shows that Swanson Brothers insisted that the provision be inserted in the license agreement. The evidence is, at best, extremely weak upon that point. There is a question whether or not it is material in deciding the question. Quite naturally, Swanson Brothers were interested in receiving payment of an account receivable. But petitioner was under no legal obligation to pay Dukane’s debt. Passing from that to the part quoted from the majority opinion, I believe the conclusion stated is erroneous as a matter of law. Petitioner was the owner of property rights in a process for which patents were pending and were granted. He alone could grant a license to use the process. He made such grant by the license agreement and the royalties were derived thereform. As the only party to the license agreement and the sole owner of the process licensed, petitioner had the right from the date of the agreement to all royalties provided for in the agreement and to have them applied as provided for therein. Petitioner directed in the license agreement that royalties be applied to reduce the Dukane debt to Swanson Brothers. Nevertheless the royalties first accrued under the license agreement to petitioner under his property rights in that agreement, none of which were assigned to Du-kane. The royalties were earned and were accrued under the terms of the agreement. I am unable to agree that petitioner never had the right to acquire the royalties accruing db initio, but I believe, rather, that petitioner at all times had the right to acquire the royalties and that he disposed of them by his direction, or consent, to have them applied to the Dukane debt. Certainly the royalties did not accrue to Swanson Brothers, which could not be both the obligee and the obligor of royalties, and Dukane was not assigned any property rights in the property which produced the royalties. It is, of course, not determinative that petitioner did not first receive the royalties. An assignment of income in anticipation of payment thereof does not relieve the assignor from, tax thereon.
I believe this is a clear case of an anticipatory direction to apply future income of property, voluntarily, to the use or benefit of another whose status is that of a donee, and that the rule of Samuel V. Woods, 5 B. T. A. 413; Ward v. Commissioner, 58 Fed. (2d) 757; 287 U. S. 656, and like cases is controlling, and that respondent properly-included in petitioner’s income the royalties which accrued in the taxable years. I respectfully dissent.
Black, Arhold, Hill, and Opper agree with this dissent.