dissenting: This income falls literally within the language of section 167 (a) (2) for it “may, in the discretion * * * of any person [the petitioner and his wife] not having a substantial adverse interest [Reinecke v. Smith, 289 U. S. 172; Commissioner v. Caspersen (C. C. A., 3d Cir.) 119 Fed. (2d) 94] * * * be distributed to the grantor,” he being the natural guardian of his minor children. Melanefy v. O’Driscoll, 164 Mass. 422; 41 N. E. 654; Freeman v. Coit, 27 Hun. 447; 96 N. Y. 63; Cleveland Clinic Foundation v. Humphrys (C. C. A., 6th Cir.), 97 Fed. (2d) 849; certiorari denied, 305 U. S. 624; Creeley v. Creeley, 258 Mass. 460; 155 N. E. 424. That he can obtain such income only for a specific purpose does not avail to transform a literal distribution to the grantor into something which we can fairly say Congress did not intend to include; for it is a purpose involving his own pecuniary benefit, a “restriction entailing only what would cause grantor’s taxability under Douglas v. Willcuts, 296 U. S. 1 * * *”, in any event. George H. Whiteley, Jr., 42 B. T. A. 402, 416; affd. (C. C. A., 3d Cir.), 120 Fed. (2d) 782; J. S. Pyeatt, 39 B. T. A. 774.
If such a distribution was not made in the taxable year, that is no ground for ignoring section 167, since it is the possibility, not the result, which that section prescribes as the criterion of taxability. George H. Whiteley, Jr., supra; J. S. Pyeatt, supra, distinguishing E. E. Black, 36 B. T. A. 346, and similar cases. Actual or constructive receipt of income is a consideration more appropriate to the determination of gross income under section 22 (a). See Schweitzer v. Commissioner, 75 Fed. (2d) 702; reversed, 296 U. S. 551. But subdivision (a) (2) of 16'7 refers to income which “may” be distributed. The word “is” does not even appear.
*155Only a total disregard of reality can justify us in viewing the same individual in his capacities of taxpayer, grantor, trustee, natural guardian, and father, as sepárate beings. Lacking acceptable proof that petitioner can not benefit from this trust except by violating its terms — an inconceivable result, since the instrument specifically sanctions his use of the income for the payment of his own obligations — I am unconvinced that there is warrant for reading section 167 as though it used the word “grantor” to describe a capacity instead of a man. See Reinecke v. Smith, supra; White v. Higgins (C. C. A., 1st Cir.), 116 Fed. (2d) 312; William Clark Arkell, 38 B. T. A. 177, 181; Ethel K. Childers, 39 B. T. A. 904; affd. (C. C. A., 10th Cir.), 110 Fed. (2d) 934; certiorari denied, 311 U. S. 667.
Smith, Hnx, and Disney agree with this dissent.