*89 In these proceedings petitioners protest deficiencies in income tax for the years 1926, 1927 and 1928, the respective amounts being *90 $661.43, $3,057.58 and $2,917.86. Two errors are alleged as to each year: (1) The disallowance by respondent of a deduction claimed by the estate of the amount distributed to the life beneficiary, and (2) the inclusion of the amount of such disallowed deduction in net income of the estate.
The proceedings were submitted on a stipulation of facts, which we adopt as our findings of fact.
FINDINGS OF FACT.
1. Alfred E. Connell, a resident of Scranton, Pennsylvania, died testate March 17, 1925, leaving to survive him a widow, Jane H. Connell, and four children.
2. A certified copy of the last will and testament of Alfred E. Connell is attached hereto, marked "Exhibit A" and made a part hereof.
3. The widow, Jane H. Connell, elected to take under the terms of the will of her deceased husband.
4. The net value of the estate of Alfred E. Connell at the date of his death was in excess of $600,000.
*1372 5. The amount received by the beneficiary, Jane H. Connell, from the executors and trustees of the estate of Alfred E. Connell, deceased, during the years 1925, 1926, 1927 and 1928 totaled less than $200,000, or less than the amount of her dower right.
6. The net income of the estate for the calendar year 1926, after the payment of expenses, but without the deduction for the distribution to the beneficiary, was $28,093.46.
7. The net income of said estate for the calendar year 1927, after the payment of expenses, but without the deduction for the distribution to the beneficiary, was $50,776.12.
8. The net income of said estate for the calendar year 1928, after the payment of expenses, but without the deduction for the distribution to the beneficiary, was $49,944.99.
9. During the calendar year 1926 the trustees of said estate paid to Jane H. Connell the sum of $28,093.46 or credited the same to her account.
10. During the calendar year 1927 the trustees of said estate paid to Jane H. Connell the sum of $49,783.30 or credited the same to her account.
11. During the calendar year 1928 the trustees of said estate paid to Jane H. Connell the sum of $49,944.99*1373 or credited the same to her account.
12. For the calendar years 1926 and 1927 Jane H. Connell filed with the collector of internal revenue for the 12th district of Pennsylvania, her income-tax returns including therein the amounts set *91 forth in paragraphs Nine and Ten hereinabove and paid a tax thereon.
13. For the calendar year 1926 refund has been made to the said Jane H. Connell on account of the inclusion in her income-tax return of the amount described in paragraph Nine above.
14. On November 2, 1928, the Commissioner of Internal Revenue and Jane H. Connell executed Form 866, in which it was agreed that $3,758.15 represented her correct tax liability for the year 1927. This agreement was approved by the Secretary of the Treasury on January 3, 1929, and a copy thereof is attached hereto [to the stipulation] and marked "Exhibit B."
15. No part of the $3,758.15, the tax paid by the said Jane H. Connell for the calendar year 1927, has been refunded to her.
OPINION.
VAN FOSSAN: The fundamental question presented by the stipulated facts is whether the estate is liable for income taxes on its income where the widow elected to take under the will in lieu*1374 of dower and the sums so paid her by the trustees aggregate less than her dower interest. This question was before us and fully considered in . We held the estate taxable. Petitioners concede in their brief that the present case falls squarely within the Butterworth case as to the years 1926 and 1928, but argue that a different situation obtains as to 1927.
The burden of petitioners' argument as to 1927 rests on the fact that the beneficiary reported this income in her return for 1927 and, for whatever reason, entered into an "Agreement as to Final Determination of Tax Liability" with the proper officials of the Treasury Department. By executing the agreement she precluded herself from claiming a refund of the taxes so paid. Apparently no such agreement was entered into as to 1926 and 1928 and the respondent refunded the tax paid for those years. Petitioners argue, in effect, that it is unconscionable for respondent to retain the tax paid by the beneficiary and at the same time insist on the additional payment by the estate.
We know only the bare facts set out in the stipulation, but in their brief petitioners*1375 absolve the Government of any suspicion of "fraud, malfeasance or misrepresentation." The beneficiary is not a party to these proceedings and we have no duty to perform in her respect. The law is well settled that the estate, in the stated circumstances, is liable for the tax. If the beneficiary feels aggrieved, and we have no knowledge on that score, her redress, if any exists, lies in some other forum.
*92 So far as the facts pertinent to the estate go, the situation obtaining in 1927 is identically the same as in 1926 and 1928. The ruling of the Board in the Butterworth case, followed in , and , is controlling.
Decision will be entered for the respondent.