*1237 Held, that income derived from brokerage accounts opened and operated by the petitioner in the names of his three minor daughters was in fact income of said daughters, and is not taxable to the petitioner.
*1158 This is a proceeding for the redetermination of a deficiency in income tax for the year 1927 in the amount of $3,402.96. The deficiency results wholly from the action of the respondent in including in the computation of the petitioner's taxable net income items of gross income and deductions reported in the tax returns of the petitioner's three daughters, which action is assigned by the petitioner as error.
FINDINGS OF FACT.
The petitioner is an individual, residing at Cincinnati, Ohio. He is vice president and general manager of the Frank Tea & Spice Company, and also an officer of another company engaged in the manufacture of boxes and labels.
*1159 The petitioner's family consists of his wife, Selma B. Frank, and three daughters, Harriet, Emily and Margaret. In the taxable year, the*1238 daughters were 18, 16 and 10 years of age, respectively.
During the taxable year each daughter had a separate estate, which had been created by gifts from the father and mother, beginning shortly after their marriage. These gifts consisted of the common stock of various companies. Gifts of stock of the Frank Tea & Spice Company were made between 1913 and 1918. Also, from time to time small amounts of other own savings were invested in common stocks, in which cases the stocks were transferred on the books of the corporations and reissued in the names of their daughters.
Separate income tax returns were made in behalf of the daughters for the taxable year 1927, and for years prior thereto. The petitioner filed a personal income tax return for 1927, and a separate return was also filed for Mrs. Frank. The income reported in the returns of the daughters was derived from stocks held in their names and from profits made in brokerage accounts. The deductions claimed were for interest charged to them in the brokerage accounts and for taxes on transfers. The amounts of the income and deductions are not in dispute.
Having been successful in dealing in common stocks, the petitioner*1239 conceived the idea in 1925 of opening a brokerage account in the name of each daughter. While the accounts were opened in the individual names of the daughters, they were considered as a joint account for the three, so that each would receive an equal amount of income. There was nothing in writing between the petitioner and his daughters with respect to said accounts, except powers of attorney granted from time to time for the sale of stocks standing in the names of the daughters, and during the year 1931 petitioner had a broad power of attorney from Emily Frank during her absence abroad.
It was found to be a difficult matter to keep the brokerage accounts of the daughters equal, and in an effort to do so transfers were made between the accounts. Eventually an investment trust was established in 1929, primarily for the purpose of equalizing the income. When the investment trust was established, the stocks placed therein were derived in part from the brokerage or trading accounts, and in part represented gifts from the petitioner. The petitioner was the settlor of the trust, but the trust instrument provided that others than the petitioner might deposit property therein to become*1240 a part of the corpus of the trust.
At the time the investment trust was created, the matter was discussed by the petitioner with his wife and daughters and others. In *1160 the discussion with the daughters it was explained that the trust was designed to insure their income against the hazards of loss of principal; also the discussions embraced the payment of the income to the father to be used by him for the education and other personal uses of the daughters until they reached the age of 21 years, after which each should receive her share of the income for her unrestricted use. There was also discussion with the daughters in regard to tying up the principal until they reached a certain age, and finally the age of 50 years was agreed upon by all.
The petitioner opened the brokerage accounts in the names of his daughters, and in two instances they were opened with dividends from stocks standing in their names, which stocks had been previously given to them by the petitioner. Both the petitioner and his wife had active brokerage accounts during the taxable year, which were maintained in their own names. At different times the petitioner had two such accounts, one known*1241 as Wise & Frank, being owned jointly by the petitioner and a friend.
At the time the petitioner opened the accounts for his daughters, he explained to the broker his plan was thereby to create a separate estate for each of them, and the broker was told that the accounts belonged to the girls. The daughters were also advised that the accounts had been opened in their names, and from time to time they were told of market gains. The petitioner also discussed with his daughters the question of stocks to be purchased. The money requirements of the daughters were never taken from the brokerage accounts, but the expenses of their education, clothing and other necessities, prior to 1929, were borne by the petitioner. After the establishment of the trust fund, the income therefrom was to be used for educational purposes of the daughters.
Mrs. Frank made gifts from time to time to the accounts of her daughters. These gifts were usually made from proceeds of stocks which had been in her name, or by the transfer of stocks in the brokerage office to the account of one or the other of the daughters. Mrs. Frank personally made gifts to her daughters through the brokerage accounts in the*1242 years 1925, 1926 and 1927 totaling over $55,000. They were made in the form of transfers of cash balances from her account, transfers of proceeds from the sale of stocks owned in her account and turned over to the daughters.
Mrs. Frank had had a separate estate from that of her husband since her marriage in 1907. It was acquired by inheritance from her parents and other relatives, and amounted to not less than $200,000. It was invested in the common stock of the Frank Tea & Spice Company and in the common stock of other companies. She *1161 had an active brokerage account in 1927, which was started in 1920 or 1921. Her account was managed by the petitioner.
In the accounts of the daughters entries were made from time to time showing deliveries of stocks. Such entries indicated the delivery of stocks in certificate form out of the account into the names of the daughters, which stock was receipted for by the petitioner. Such stocks were placed in a safety deposit box kept in the name of the petitioner and his wife. The stocks were then either held in the safety deposit box, or, if necessary, were deposited in the brokerage account and sold. The stocks not needed*1243 by the accounts are still in the names of the daughters, except that Harriet Frank's stocks were turned over to her at the time she was married.
Dividend checks on stocks held in the safety deposit box were made in the names of the daughters, and were either deposited in the proper brokerage account or were turned over to them for their own use. Proceeds from the sale of stocks in the accounts of the daughters were never deposited in the account of the petitioner, and the petitioner never at any time made use of the proceeds of such sales.
Powers of attorney, executed by the daughters themselves, were given to the petitioner from time to time in connection with stocks held in their separate estates. The petitioner made necessary endorsements on such stocks when required, but after a daughter became of age, she herself made the endorsements on her own stocks. In some instances there were transfers between the brokerage accounts of the girls, principally for the purpose of equalizing the accounts, and there were transfers from Mrs. Frank's account to the accounts of the daughters, but in no instance was there any transfer from the accounts of the daughters to any other account.
*1244 In 1928, $12,000 in cash was withdrawn from Emily Frank's account. Said amount was withdrawn by the petitioner after consultation with the family, and was used to pay the expenses of the daughters on a three-month trip to Europe. The entire family went on the trip, and the total expenses amounted to about $25,000, of which more than $12,000 was spent for the girls.
Two of the petitioner's daughters have reached legal age. Harriet is 23 years of age and married. Emily became 21 years of age in January, 1932. At the time of the marriage of Harriet, the stocks and securities held in her brokerage account were turned over to her by the petitioner, and the account was closed. This daughter also has a one-third interest in the trust established in 1929 in part from stocks taken from the brokerage accounts and in part from stocks placed in the trust as gifts by the petitioner or his wife. The brokerage accounts of the other two daughters are still in existence.
*1162 OPINION.
TRAMMELL: The sole issue in this case is whether or not the net income reported in the returns of the petitioner's three daughters for the taxable year 1927 belonged to them or to the petitioner. *1245 The amount of gross income reported and deductions claimed are not in dispute. The income in controversy was derived from brokerage accounts opened and operated by the petitioner in the names of his daughters, under the circumstances set out in our findings of fact.
The respondent determined that these trading accounts were in effect trading accounts of the petitioner, and that all profits and losses resulting from the transactions should be reflected in his income tax return. The petitioner contends that the action of the respondent in including in his taxable income the income derived from the brokerage accounts carried in the names of his daughters was erroneous. The issue essentially involves the question of the ownership of said accounts.
The uncontroverted evidence shows that in 1925 the petitioner established brokerage accounts in the names of each of his three daughters, who were in that year 16, 14 and 8 years of age, respectively. In the taxable year they were 18, 16 and 10 years of age, respectively. The accounts were opened with stocks which had been theretofore given to their daughters by the petitioner and his wife. Mrs. Frank had a separate estate valued*1246 at not less than $200,000, and during the years 1925 to 1927, inclusive, made transfers to the brokerage accounts of the three daughters in excess of $55,000. Transfers were also made to the daughters' accounts by the petitioner, and both the corpus and income of the accounts were at all times scrupulously treated as the separate property of the daughters.
The petitioner and his wife each had a separate brokerage account, and stocks and cash were transferred from other accounts to the accounts of the daughters, but no transfer was ever at any time made from the accounts of the daughters to any other account. The petitioner managed the brokerage accounts of the daughters, as well as his wife's and his own, but never at any time used any stocks or proceeds from the daughters' accounts other than for their direct benefit. Some of the stocks were transferred to the daughters on the books of the corporations and certificates issued in their names, and when the trading accounts were opened in the names of the daughters the broker was specifically informed that said accounts belonged to them. All checks for the proceeds from sales of stock were made in their names. When a daughter*1247 became of age, the income was paid over to her for her own use, and when the eldest daughter was married her brokerage *1163 account was closed and the stocks and cash therein were turned over to her and her husband.
These facts, in our opinion, reasonably establish that the brokerage accounts in question belonged in fact to the daughters, and that the stocks and cash transferred by the parents to the trading accounts of the daughters prior to the taxable year constituted bona fide completed gifts.
When the brokerage accounts were opened by the petitioner in the names of his minor daughters, the broker was fully informed that the accounts belonged to them, and the petitioner explained to the broker the purpose in view, namely to create separate estates for the daughters. Under the well established rules of law, the broker thereupon became a pledgee for the daughters in respect of the stocks thereafter contained in the said accounts, and occupied a fiduciary relationship to the petitioner's daughters. His possession was their possession, and they were entitled to receive from him all property in their accounts after deduction of the broker's lawful charges. See *1248 ; ; ; ; .
The respondent's contention is predicated on the theory that completed gifts were not made in or prior to the taxable year, allegedly because there was no delivery of possession to the daughters who were not permitted to exercise dominion over the subject matter thereof. Respondent points to the fact that the petitioner was in full and complete control in managing the accounts of the daughters, and in 1929, subsequent to the taxable year, established a trust fund as settlor, including in the corpus of the trust stocks taken from the daughters' brokerage accounts. The points raised by the respondent we think are not controlled under the circumstances of this case.
When the gifts here in question were being made, the daughters were infants, incompetent both in law and in fact to have uncontrolled possession of large sums of money or to manage valuable property. Even in the taxable year the youngest girl was only 10 years of age and the eldest 18. It is the generally*1249 recognized rule that where a gift is made to a child the father as natural guardian may take possession and exercise complete dominion and control over the property for his child. ; ; ; ; ; ; ; .
In , the court said:
Where a gift is made to an infant, even by the father himself, and the father takes possession of the property, he holds as natural guardian, and the possession is the infant's.
*1164 The same rule prevails in Ohio. In , it was held that a gift to a child of such tender years as to be unfit to have the custody of the gift would not be defeated by the retention of such custody by the donor's wife. On appeal, the case was affirmed without opinion by the Supreme Court of Ohio. *1250 (; .) To the same effect, see other decisions of the Ohio courts cited in The General Code of Ohio, sec. 10928, recognizes the father and mother as the natural guardians of a minor child and provides that they shall have the management of such ward's estate during minority.
In respect of delivery of the subject matter of the various gifts involved in this case, it seems to us that the petitioner did everything that could reasonably have been expected of him to make valid delivery to his minor daughters, under the existing circumstances.
In , we had before us a situation essentially similar on the question of delivery to that presented in the instant case. Moores transferred to his wife and two minor daughters, then 14 and 7 years of age respectively, a total of 160 shares of common stock of the Moores & Ross Milk Company, 100 shares being transferred to his wife and 30 shares to each of the children. The stock was transferred to the children for the purpose of providing a separate estate for them and of interesting them in business affairs, as well*1251 as to provide for them against any eventuality that might occur in the future. As in the present case, Moores managed all transactions for his wife and children, and the following extract from our opinion as to the sufficiency of delivery to the minor children is equally applicable here:
It is essential to the validity of a gift that there be a distinct delivery of property so as to show that the donor has relinquished all dominion over it. The donor went as far in this case as he could have gone, unless he had secured the appointment of a guardian or trustee to manage the property of his daughters. Naturally, he deemed such appointment unnecessary. He was their natural guardian, and his success in business might well have led him to believe that no other was necessary or desirable from any point of view. The appointment of a guardian or trustee would, to some extent at least, have deprived the children of the opportunity to learn how to transact business and to conserve the property. It would have been expensive and an unnecessary improvement of their property.
The petitioner here was the natural and legal guardian of his minor daughters and his possession and control of*1252 the subject matter of the gifts constituted possession and control by the daughters. The gifts will not be defeated because of such fact, if there was a bona fide intention to give. On this point the law presumes that the transfer of property or money to a minor child by the parents *1165 is a gift. In , the doctrine is stated as follows:
Transfers of money from a father to a minor son can not create a debt. Transfers from a father to an adult son may; but only by an express agreement to that effect. Presumptively such transfers are irrevocable gifts, either never to be accounted for or only as advancements.
In , the court said: "Money paid to a wife or child will be presumed to have been a gift or advancement, but such presumption is rebuttable." Cf. , and .
In the instant case, the evidence not only does not tend to rebut the legal presumption, but strongly supports the conclusion that bona fide gifts were intended to be made.
*1253 We are also unable to agree with the respondent that the establishment of the trust in 1929, embracing in part stocks theretofore given to the daughters, is conclusive or even persuasive evidence to defeat the alleged prior gifts. If the gifts were bona fide and complete prior to the taxable year, the income therefrom in the taxable year was not the income of this petitioner, and is not taxable to him. If the gifts were complete prior to the taxable year, what was subsequently done with the property is not material. In , proceeds from the sale of property which had been the subject matter of a prior gift were subsequently included in a trust established by the donor, and the court said:
After a gift is once complete and the title has passed to the donee, the fact that the donor subsequently has possession of the property given does not affect the validity of the gift. [Citing authorities.]
See also , where we held that income from shares of stock held in trust by the petitioner for her minor son was not taxable to her.
Respondent's action in the present case is reversed.
*1254 Judgment will be entered for the petitioner.