*1285 TRUST INCOME - TAXABLE TO GRANTOR. - The income of a trust for the taxable year, which was to be accumulated and added to corpus, was taxable to the grantor, who retained the power to revoke the trust at any time after January 1, 1950, and regain the corpus.
*720 The Commissioner determined a deficiency of $2,961.65 in income tax for the calendar year 1935. The issue is whether or not he erred by including in the income of the petitioner the income of a trust which she established in 1924.
FINDINGS OF FACT.
The petitioner is an individual who filed her income tax return for the calendar year 1935 with the collector of internal revenue at Chicago.
The petitioner created a trust on December 24, 1924. The trust instrument is included in these findingsc by this reference. The petitioner at that time conveyed a small part of her property to the trust. She later transferred some additional property to the trust.
The petitioner was born on May 18, 1886. Her husband was born on April 12, 1883. Their first child, *1286 Pauline Seipp Goltra, was born on July 7, 1914, and their only other child, Edwin A. Seipp, Jr., was born on February 23, 1918. These four were still alive at the date of the hearing on December 3, 1940.
The practice of the trustee has been to submit proposed changes in the trust property to the husband of the petitioner in order to secure *721 his approval for making the changes. The husband of the petitioner has never voted any stock held by the trust. The record does not show that the trust held any stock which had voting rights.
No part of the income of the trust has ever been paid to the petitioner or used to pay premiums on her life insurance. She has never reported any of the income of the trust on her income tax returns.
The present trustee is the successor through corporate changes to the trustee originally appointed by the petitioner. It filed a fiduciary return for the trust for 1935, reporting all of the income of the trust and paying the tax thereon.
The husband of the petitioner was financially able to maintain and support his two children at all times material hereto.
The daughter, Pauline Seipp Goltra, became 25 years of age on July 7, 1939. *1287 The trust was divided into two parts at that time and thereafter the income of one part was paid to her.
OPINION.
MURDOCK: The petitioner created the trust here in question on December 24, 1924. The net income from the trust estate was to be added to the principal of the trust until the first child reached the age of 25, at which time the corpus was to be divided into equal parts, one for each child. Children of a deceased child were to take their parent's share. Then, as the beneficiaries became 25 years of age, they were to receive the income from their share. The trust was to continue for 20 years after the death of the survivor of the two children and the corpus was then to be divided among the income beneficiaries. The settlor reserved the right to revoke the trust at any time after January 1, 1950, by an instrument in writing signed by her and her husband and delivered to the trustee. The trust estate, in case of revocation, was to be returned to the settlor.
This case comes squarely within section 167(a)(1) as interpreted by the Board and the courts. The court in *1288 , quoted with approval the following from :
* * * We think the statute means that if under any circumstances or contingencies any part of the accumulated income might inure to the benefit of the grantor, such portion of the income is taxable to him.
The following cases involved facts which are not distinguishable from those in the present case. ; ; ; affirmed sub nom. . Capital gains in the Elias case were to be accumulated and added to corpus and the grantor could revoke the trust and recapture that income at any time after the trust had *722 been in existence for six and one-half years. The grantor in the Taylor case provided that the income should be accumulated during his lifetime and he could revoke the trust and recapture that income at any time after two years following the death of his mother. *1289 The grantor in the O'Laughlin case created a trust in 1931, which was revocable by him beginning January 1, 1935. The income was accumulated by direction of trustees who had no adverse interest. We held in each of those cases that the income was taxable to the grantor under section 167. They are authorities for reaching the same result in this case.
It is unnecessary to decide at this time whether the Board will follow , reversing , and under which it might be held that the power to revoke reserved by this petitioner was vested in her from the very creation of the trust, so that section 166 of the Revenue Act of 1934 would apply. Compare , where the court held that its prior decision in , was no longer authority. That was the case principally relied upon by the Board in holding that section 166 did not apply to the facts in the Dunning case and to the facts in the case of *1290
Reviewed by the Board.
Decision will be entered for the respondent.