OPINION.
SteeNhageN :The Commissioner determined a deficiency of $21,-230.25 in gift tax for 1932. The facts are not in dispute.
Petitioner, now a resident of New York City, is the widow of James F. A. Clark. She and her husband formerly resided at Newport, Rhode Island, and her tax return for 1932 was filed there.
On June 13, 1931, petitioner’s husband transferred securities to a trustee by an instrument directing the trustee to collect the income, pay expenses, and distribute net income to petitioner for life; and upon her death to divide the principal into equal shares for the benefit of their three children, and to pay all or part of the income of a share to each child for life, and upon the child’s death to distribute the share among the child’s issue. The trust was expressly made irrevocable by the grantor.
Thibd : Tbe Grantor grants to the Wife the right from time to time, by written instrument executed with the formalities required by law in respect to a deed of real estate, and delivered to the Trustee, to revoke, terminate or amend this deed of trust and/or any provision thereof, to any extent and in any manner that the Wife may determine.
On June 22,1932, petitioner amended the deed of trust by striking out this part of article third. On that date the value qf trust corpus was $754,012.84. The Commissioner determined that by the amendment petitioner made a gift of the remainder interest in the trust, and computed a gift tax on a value of $338,815.67, the undisputed present worth of the trust corpus payable at the death of a person aged 47 years. This was explained in the notice of deficiency, as follows:
Since the provisions of the deed of trust dated June 13, 1931, provided you with full power to revoke, terminate or amend the same, or any provisions thereof to any extent and in any manner that you shall determine, you were vested with complete control and disposition of the property and your relinquishing such right on June 22, 1932, constituted a gift within the meaning of the gift tax act of 1932.
*866The argument to support this view is that, since the petitioner had an unqualified power to amend the trust, even to the extent of directing that the property be transferred to her, she was in substance the owner of the property, and that when she amended the trust by relinquishing this power, she in effect transferred the property, subject to her continuing right to receive the income, to the successor beneficiaries named in the trust. The argument involves the idea that the relinquishment of the power is the same as its exercise. Whether the donee of the power should appoint to the successor beneficiaries or should expressly relinquish the power to appoint, the effect is to assure to the successor beneficiaries the acquisition of the property upon her death, and thus give them a present vested interest in lieu of the contingent expectancy they had under the original trust. The question is whether this change may be regarded as a ^transfer of property within the meaning of those words in the gift tax statute!
If this were a testamentary power of appointment, the petitioner’s express relinquishment of it in her will would have the legal effect of a transfer of the property to the children from the donor of the power; and this would also be true, if, despite the exercise of the power by appointing them, they, nevertheless, chose to take by virtue of the original trust. Under such circumstances, their acquisition of the property at the death of the donee ofThNpower would~nbt be regarded as by transfer at her death to support an estate tax upon her estate. Helvering v. Grinnell, 294 U. S. 153 (disapproving Wear v. Commissioner, 65 Fed. (2d) 665, and Lee v. Commissioner, 57 Fed. (2d) 399); Helvering v. Safe Deposit & Trust Co. of Baltimore, 316 U. S. 56. See also Legg's Estate v. Commissioner, 114 Fed. (2d) 760. It seems equally true that her relinquishment during her life is not a transfer by her. It is a final and irrevocable extinguishment of the power, Merrill v. Lynch, 13 N. Y. Supp. (2d) 514. The property interests which the beneficiaries have after the relinquishment are already contingently theirs by virtue of the original trust, and the relinquishment removes a power of defeasance and gives them greater assurance of their future expectancy. To regard this as a present transfer of property is, we think, to distort the language of the statute too far to be acceptable. Cf. Commissioner v. Solomon, 124 Fed. (2d) 86.
Reviewed by the Board.
Decision will be entered for the petitioner.