*2091 1. The respondent mailed to the petitioner a notice of deficiency for the year 1922. Before the expiration of the 60-day period within which a petition could have been filed with the United States Board of Tax Appeals the petitioner waived the right to file such petition and none was filed. The additional tax asserted in said deficiency notice was assessed. Subsequently the respondent mailed to the petitioner a second deficiency notice for the year 1922 asserting a further deficiency. Held that the second deficiency notice was valid.
2. The petitioner as the beneficiary of the trust involved herein is not entitled to any deduction from gross income for depletion of the trust property.
*290 This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1922 in the amount of $1,586.08. The facts have been stipulated by the parties and we find them to be as follows:
FINDINGS OF FACT.
The petitioner is an individual residing at Los Angeles, Calif.*2092 He and his wife, Laura Kittle Smith, formerly Laura A. Kittle, filed a joint return of income for the calendar year 1922. Said return was made on the basis of cash receipts and disbursements.
The petitioner's wife was during the year 1922 and until her death on June 30, 1928, a beneficiary under a certain declaration of trust made by her father, Gilbert B. Goff, Sr., on March 9, 1911. Said declaration of trust is in part in the words and figures following, to wit:
THIS INDENTURE, Made this 9th day of March, in the year of our Lord one thousand nine hundred and eleven, BETWEEN Gilbert B. Goff, a widower of the City and County of Saginaw, State of Michigan, of the first part, and Ernest A. Goff of the same place of the second part,
WITNESSETH, that the said party of the first part, for and in consideration of the sum of One Dollar and other good and valuable consideration to him in hand paid by the party of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents grant, bargain, sell, remise, release, alien and confirm unto the said party of the second part, in trust, however, and to his successors in trust for the uses and purposes*2093 and with the powers hereinafter set forth, an undivided one-ninth interest in and to all mineral deposits of whatever kind or nature, now known or hereafter discovered contained within the limits of the following described land, situated in the County of St. Louis and State of Minnesota, viz:
* * *
Excepting and reserving, however, unto the said party of the first part the right to the use and occupation of said premises and estate, together with the right to all of the rents, issues, profits, income and royalties of said property accruing and arising for and during the natural life of the said party of the first part, together with the right and power to collect, have, receive and use all such rents, issues, profits, income and royalties as his own during his natural life. The said party of the first part intending by said exception and reservation to retain in himself for and during his natural life the right to the use and occupation of said premises and the right to collect, have and receive as his own all of the rents, issues, profits, income and royalties of every kind arising or accruing from said property.
Subject to the foregoing exceptions and reservations and said*2094 life estate this conveyance is made by first party to second party, and his successors in trust together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining: TO HAVE AND TO HOLD the said premises as herein described with the appurtenances, unto the said party of the second part and his successors in trust, but in trust, however, for the following uses and purposes, and with the following powers, viz: -
*291 (a) From and after the termination of said life estate second party, and his successors in trust shall have the right to the use and occupation of said premises together with the right and power to collect, receipt for, have and receive all of the rents, issues, profits, income, and royalties accruing or arising out of or from the premises hereby conveyed during the existence of the trust estate and trust hereby created.
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(c) After the deduction of the items provided for in the preceding paragraph "b," party of the second part and his successors in trust, shall pay and turn over to Mrs. Laura A. Kittle, of Flint, Michigan, daughter of first party, one-half of the residue of all rents, issues, profits, income*2095 and royalties collected, had or received from the premises hereby conveyed as soon as the same is so collected, had or received by such trustee. Such payments to said Laura A. Kittle to continue during the continuance of the trust hereby created, or during her life, if she die before the termination of said trust.
(d) The other one-half of the residue of all rents, issues, profits, income and royalties so collected, had and received by second party and his successors in trust, he shall invest and reinvest and keep invested together with the profits, income and increase thereof in good safe investments of such character as the law sanctions and authorizes trust funds to be invested in, for the use and benefit of the children of the said Laura A. Kittle, now in being, or that may hereafter be born, in equal shares and portions as hereinafter provided: Provided that the living issue of any deceased child shall be entitled to the share or portion that the parent would have been entitled to under this instrument if living.
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(e) When the youngest surviving child of the said Laura A. Kittle, now in being or hereafter born, shall have attained the age of twenty-one years, but*2096 in no event at a date later than twenty years after the death of the survivor of the children of the said Laura A. Kittle, now in being, the said trustee and his successors in trust shall pay and turn over to the children of the said Laura A. Kittle, then living and to the then living issue of any deceased child of the said Laura A. Kittle, the rest and residue of all the rents, issue, profits, income and royalties collected, had and received by such trustee together with the income, increase and profits thereof and property acquired therewith then in his hands, possession, custody and control, in such sums, portions and amounts so that the aggregate amounts received by each such child and the living issue of any deceased child hereunder, including all prior payments and advances made, shall be equal as near as may be; and in figuring and ascertaining the amount that shall be so paid and turned over to each such child and the living issue of any deceased child, interest shall be charged at the rate of 3% per annum on all payments and advances theretofore made to them or on their account respectively. The living issue of any deceased child under this paragraph shall take the same share*2097 or portion that the parent would have taken if living; and such trustee shall at the same time deed and convey to the said Laura A. Kittle, if then living, an undivided one-half of the property and real estate and interest in real estate and minerals hereby conveyed to the party of the second part, and the other one-half thereof he shall deed and convey to the children of the said Laura A. Kittle, then living, and to the then living issue of any deceased child of the said Laura A. Kittle in equal shares and portions; Provided that the then living issue of any such deceased child shall take the share or portion that the parent would have *292 taken if living; but if the said Laura A. Kittle is not then living then the whole thereof shall be so deeded and conveyed to the then living children of the said Laura A. Kittle, and the then living issue of any of her deceased children in shares and portions above provided: Provided further that if the said Laura A. Kittle shall survive all of her said children and the issue thereof before any final division is made of the trust estate under this paragraph, then and in that event, the said trustee and his successors in trust shall deed*2098 and convey, assign, pay and turn over to the said Laura A. Kittle, all of the rest and residue of the trust estate then on hand and remaining in the possession, custody and control of such trustee; Provided further that if it shall so happen that there shall be an entire failure by reason of death of beneficiaries under this paragraph as hereinbefore provided before the trust estate is divided and wound up under this paragraph, then and in that event the said trustee and his successors in trust shall deed and convey, pay and turn over all of the rest, residue and remainder of the trust estate hereby created then in the hands, possession, custody and control of such trustee to the legal heirs of the said Gilbert B. Goff, in the shares and portions as fixed by the laws of inheritance of the State of Michigan, then in force.
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Ernest A. Goff, the trustee named in said declaration of trust, died prior to the year 1922 and was succeeded as trustee by the Detroit Trust Co., a corporation organized and existing under the laws of Michigan, with authority to act as trustee, which did during the year 1922 and still does, act as such trustee in the place and stead of the said Ernest*2099 A. Goff.
During the year 1922 said trustee received income in the form of royalties and made distributions thereof to the petitioner's wife, in the amount of $26,951.93.
In the return filed by the petitioner and his wife for the year 1922 a deduction for depletion of ore lands held under the declaration of trust was claimed in the amount of $15,922.26. The respondent upon audit of the return allowed depletion for said trust property in the amount of $10,750.88, and determined a deficiency in tax of $530.89. The petitioner was notified of said deficiency by letter mailed August 31, 1926. Before the expiration of the 60-day period indicated in said deficiency letter a conference was held by the petitioner's attorney with a proper official of the Bureau of Internal Revenue and as a result thereof the petitioner waived his right to file a petition with the United States Board of Tax Appeals and no petition was filed by the petitioner within said 60-day period. Said additional tax was assessed on the January, 1927, list.
The respondent thereafter determined that the petitioner and his wife were not entitled to any deduction from gross income for the depletion of said trust*2100 property. He therefore disallowed the amount of said depletion theretofore allowed and determined that there is a further deficiency in tax in the amount of $1,586.08. The petitioner was notified thereof by letter mailed February 7, 1927.
*293 OPINION.
MARQUETTE: The facts and issues in this proceeding are identical with those in , and on the authority of that decision our judgment is in favor of the respondent.
Reviewed by the Board.
Judgment will be entered for the respondent.