(dissenting)-
An income tax is levied upon and is to be paid by those who earn the sums on account of which the tax is laid. In Saenger v. Commissioner, 5 Cir., 69 F.2d 631, 632, where we had occasion to make a thorough canvass of the rule in Earl’s case,1 we said: “The rule of the Earl case, while made graphic by a figure, is more than a figure of speech. It is an expression of the simple truth that earned incomes are taxed to and must be paid by those who earn them, and unearned incomes to those who own the property or right that produced them, not to those to whom their earners or owners are under contract to pay them. It establishes once for all that no device or arrangement, be it ever so shrewdly and cunningly contrived, can make future earnings taxable to any but the real earner of them, can make future incomes from property taxable to any but the owner of the right or title from which the income springs. * * * The rule does not make taxable to one the income of another.” Here follows the citation of many authorities including Van Meter v. Commissioner of Internal Revenue, 8 Cir., 61 F.2d 817, cited in the majority opinion in this case. “It operates to prevent this occurring. If what is done in any case, no matter what form of words is used, amounts to the transfer of the right or title to that from which the income springs, the income follows the right. Likewise, if compensation paid to one is paid to him as the agent or servant in fact, not in fiction, of another, that -income is taxable, not to the servant or agent as earner, but to its real earner, the principal. * * *” Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249; Hoeper v. Tax Comm., 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248, 78 A.L.R. 346; Rose v. Com’r, 6 Cir., 65 F.2d 616; Commissioner v. Olds, 6 Cir., 60 F.2d 252, 253.
Vigorous and compelling as are the reasons underlying the rule of the Earl case, and comprehensive and sweeping as its effect, cf. Robert T. Jones, Jr. v. Page, et. al., 5 Cir., 102 F.2d 144, it cannot make income of that which is not income; it cannot support a tax against Comer, as on income, in respect of a sum, paid as salary which by the terms of the trust agreement, is made income not of Comer, the individual, but of Comer, the trustee, as income of his trust.
With deference, the opinion of the majority has either incorrectly apprehended, or incorrectly applied the rule here. Instead of, as the majority declares, the salary having been in fact earned by and paid to the individual Comer, it was in fact earned by and paid to Comer the trustee, for the trust.
Owning 98% of the stock in the corporation, the trust owned all, or substantially all, of its stock.2 The trust had the right through its stock ownership, to determine to whom salaries should be paid. It did determine that Comer, not individually, .but as trustee and on behalf of the trust, should be president, and draw a salary as income of the trust. This arrangement was reasonable, proper and intelligent. It gave a family trust, the benefit of the services of the trustees, without paying them any personal compensation. All compensation for their services was, under the trust agreement, to come to the trust estate as the owner of the property, as its income, to be distributed along with other earnings to all beneficiaries of the trust, trustees and non-trustees equally. To hold that the salary paid under these circumstances and agreements was earned by and paid to Comer individually, and not to him as trustee, and as income of the trust, is to extend the rule in Earl’s case, to a reductio ad absurdum, is, in short, to run it into the ground. The $5,000 paid as salary by the Jefferson Building and Realty Company, was not Comer’s income. It was paid to him, not individually, but as trustee, for the use and benefit of the trust. It was not taxable income to Comer.
The unreality, as well as the unrelieved harshness as to Comer, of the view the majority adopts, appears even more clearly, when the second contention of appellant is examined. This is that, though individ-ually and beneficially, Comer received from and on acccount of the trust estate, exactly the same income as, and not one cent more *359than, the other beneficiaries received from and on account of it, an income tax is exacted of him, as though his income was $5,000 in excess of theirs, merely because of the fact that $5,000 of the total income of the trust was denominated salary and passed through his hands as trustee on the way to the trust.
The record shows that everyone, except the Government, understood that the salary was not Comer’s individually, but as trustee for the trust. It was either the trustee’s income or his, it could not be the income of both. Cf. Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465.
“A strained construction in administrative efforts to accrue income should be avoided.” Commissioner v. Edwards Drilling Co., 5 Cir., 95 F.2d 719, 720. Believing that the view of the majority is neither within the letter nor the spirit of the rule invoked, and mindful of another rule that questions arising upon the construction of taxing statutes should, if reasonably possible, be resolved in favor of the taxpayer, and that a strained construction to accrue income should be avoided,
I respectfully dissent.
Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731.
Cf. 26 U.S.C.A. § 141 — Fixing ownership of 95% of the stock as in legal effect, all of, or substantially all of it.