*231 Decision will be entered for the respondent.
Held, under the evidence, that petitioner made a gift of stock in trust, rather than one directly to the beneficiary of the trust and is not entitled to the exclusion provided by section 504 (b) of the Revenue Act of 1932 as amended by section 505 (a) of the Revenue Act of 1938.
*598 The respondent determined a gift tax deficiency against the petitioner for the calendar year 1939 in the amount of $ 510. The sole question before us is whether the petitioner is entitled to an exclusion of $ 4,000 under section 504 (b) of the Revenue Act of 1932, as amended by section 505 (a) of the Revenue Act of 1938, for a gift of stock made to one Lynne Frances.
FINDINGS OF FACT.
The petitioner filed a gift tax return for the calendar year 1939 with the collector of internal revenue for the first district of Pennsylvania at Philadelphia, Pennsylvania.
On November 20, 1939, the petitioner and his wife executed the following gift agreement:
Whereas the said Leon Levy and Blanche P. Levy are husband*232 and wife and the said Leon Levy is the owner of certain shares of common capital stock of the Columbia Broadcasting System, Inc., and
*599 Whereas Lynne Frances is a minor child, in the household of the said Leon Levy and Blanche P. Levy, preparatory to possible adoption by the said Leon Levy and Blanche P. Levy, and
Whereas it is the desire and purpose of the said Leon Levy to make a gift of certain shares of common capital stock of Columbia Broadcasting System, Inc., to the said minor:
(1) Now, to that End, and for further effecting the said gift, the said Leon Levy hereby transfers, sets over and assigns to the said Blanche P. Levy, for the said Lynne Frances, minor, One Hundred Sixty-five (165) shares of common capital Class "B" stock of Columbia Broadcasting System, Inc., par value Two Dollars and ($ 2.50) Fifty Cents, indicated by Certificates Nos. B390, 100 shares; and B03302, 65 shares.
(2) The said Blanche P. Levy hereby accepts the said gift, with the usual incidents of a Trusteeship, and agrees to transfer to the said beneficiary upon her reaching majority, such Certificate or Certificates as may be issued to her for the above set out Certificates, or any other property*233 that may at that time represent the Corpus of this Gift, together with any accumulations thereon.
Witness the hands and seals of the parties hereto the date first above written.
[Signed] Blanche P. Levy (seal)
Leon Levy (seal)
A carbon copy of the above agreement was also signed by Blanche P. Levy as follows: "Blanche P. Levy tr."
In making the gift, the value of which was approximately $ 3,963, the petitioner delivered the stock to his wife, telling her that he was giving it to her to hold for Lynne Frances and that it was intended as a gift to Lynne Frances. Thereafter, the shares of stock were carried in the name of the petitioner's wife.
In making the gift petitioner intended to stay within the $ 4,000 pecuniary limit of the gift tax exclusion provided by the Revenue Act applicable to the year 1939.
Petitioner, in making the gift, intended to empower his wife, Blanche P. Levy, with the discretion of determining whether she would use the income from the gift for the maintenance of Lynne Frances, who, at the time of the gift, was two and one-half years old. Likewise, Blanche P. Levy, one of the signers of the agreement, considered herself to have such discretion. Blanche P. Levy*234 interpreted the provision of the gift instrument, "Blanche P. Levy hereby accepts the said gift, with the usual incidents of a trusteeship," to mean that she held the stock in trust for Lynne Frances to use as she saw fit for the benefit of Lynne Frances. By placing the letters "tr" after her signature on the copy of the gift agreement she meant that she held the stock in trust for Lynne Frances.
The income from the property which was the subject of the gift for the years 1939, 1940, and 1941 was $ 74.25, $ 670, and $ 968.10, respectively. There were no disbursements from the income for 1939. The disbursements from the income for the years 1940 and 1941 were in the respective amounts of $ 12.57 and $ 93.09, which sums were used to pay taxes.
*600 During the years from 1936 to 1941, inclusive, the petitioner made gifts to his minor son, Robert P. Levy, the value of which during each year was within the pecuniary limits of the gift tax exclusions of the revenue acts applicable to the respective gifts. By a trust agreement dated December 23, 1936, the petitioner transferred Columbia Broadcasting System, Inc., stock to Blanche P. Levy in trust for their minor son, Robert P. Levy. *235 The petitioner intended to make the gift in question in the same manner as the gift made to Robert P. Levy by the trust agreement dated December 23, 1936.
Statements of petitioner's financial condition prepared by a certified public accountant shows petitioner's net worth to have been in excess of $ 2,000,000 from the year 1936 through 1941.
In his determination of the deficiency respondent disallowed an exclusion of $ 4,000 claimed by petitioner in his gift tax return, on the ground that the gift here in question was one to a trust or was one of a future interest.
The transfer under the instrument dated November 20, 1939, constituted a gift in trust.
OPINION.
The issue is whether the gift by petitioner to his wife for Lynne Frances comes within the $ 4,000 gift tax exclusion under section 504 (b) of the Revenue Act of 1932, as amended by section 505 (a) of the Revenue Act of 1938. 1 Petitioner contends that the gift in question was not in trust, but an outright gift of a present interest to Lynne Frances, and therefore came within the gift tax exclusion. Respondent, on the other hand, contends that the gift did not come within the gift tax exclusion, because it was a transfer*236 in trust. In the alternative, respondent claims that regardless of legal nomenclature the interest of Lynne Frances in the property, if directly given her by the petitioner, was the gift of a future interest which would place it without the gift tax exclusion.
We first decide whether the transfer in question constituted a trust. American Law Institute, Restatement of the Law, Trusts, p. 6, § 2, defines a trust as follows:
* * * a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation*237 of an intention to create it.
*601 Scott on Trusts, vol. 1, § 2.3, says, in describing the characteristics of a trust:
* * * it is a relationship of a fiduciary character; * * * with respect to property, * * *; it involves the existence of equitable duties imposed upon the holder of the title to the property to deal with it for the benefit of another; and * * * it arises as a result of a manifestation of intention to create the relationship.
Looking to the terms of the trust instrument under which the gift in question was made, we see that the petitioner transferred 165 shares of stock of Columbia Broadcasting System, Inc., to his wife, Blanche P. Levy, for Lynne Frances. Blanche P. Levy accepted the property "with the usual incidents of a trusteeship" and agreed to transfer the stock, or such other certificates as might be issued to her for such stock, together with accumulations thereon, to Lynne Frances upon her reaching majority. Thus the trust instrument itself indicates a fiduciary relationship with respect to specific property, with equitable duties imposed upon Blanche P. Levy to deal with the property for the benefit of Lynne Frances.
According to the authorities above*238 cited, another necessary element in the creation of a trust is that the grantor manifest an intention to do so. While it may be assumed, without so deciding, that the quoted words in the trust instrument, as well as other provisions thereof, may not be a clear manifestation of an intention to create a trust (see ; Scott on Trusts, vol. 1, § 24), there is extrinsic evidence to indicate such intention. On December 23, 1936, the petitioner made a transfer to his wife which was unambiguously in trust for his son, Robert. Referring to the gift to Lynne Frances in connection with the gift of December 23, 1936, petitioner testified, "I intended to make a gift to my daughter in the same manner I made the gift to my son." Petitioner also testified that he intended Blanche P. Levy to have the discretion of determining whether or not to use the income from the stock for the maintenance of Lynne Frances, who at the time of the gift made in the taxable year was two and one-half years old. Blanche P. Levy, a party to the agreement, also considered herself to have such discretion. Blanche *239 P. Levy testified that she meant by the abbreviation "tr," which she placed after her signature on a copy of the trust agreement, "in trust for." She also testified that she interpreted the provisions of the gift instrument to the effect that "Blanche P. Levy hereby accepts the said gift with the usual incidents of a trusteeship" to mean "that I am holding this money in trust for my daughter to use as I feel she needs it or to see fit to use it for."
In view of this evidence and the whole record, it is our opinion that petitioner manifested an intention to create a trust in executing the instrument of November 20, 1939.
*602 Petitioner reasons that, since he intended the gift to come within the amount of the gift tax exclusion, it follows that he did not intend to create a trust. Even assuming that the intention to have the gift fall within the pecuniary limit of the gift tax exclusion is some evidence that petitioner did not intend to create a trust, we believe that such evidence is far outweighed by the other evidence to the contrary. Accordingly, we hold that the transfer by the petitioner to Lynne Frances constituted a trust and therefore did not fall within the gift tax*240 exclusion under section 504 (b) of the Revenue Act of 1932, as amended by section 505 (a) of the Revenue Act of 1938.
In view of our above holding, it is unnecessary to decide whether the gift constituted a transfer of a present or a future interest.
Decision will be entered for the respondent.
Footnotes
1. SEC. 505. COMPUTATION OF NET GIFTS.
* * * *
(b) Gifts Less Than $ 4,000. -- In the case of gifts (other than gifts in trust or of future interests in property) made to any person by the donor during the calendar year, the first $ 4,000 of such gifts to such person shall not, for the purposes of subsection (a), be included in the total amount of gifts made during such year.↩