(concurring).
The decision of the Tax Court in the case at bar recommends itself for it provides that income paid to a beneficiary is taxable to him as such. The decision should be affirmed in view of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, and Commissioner v. Scottish American Investment Company, Ltd., 323 U.S. 119, 65 S.Ct. 169, were it not for the legislative and judicial history of the language contained in Sections 22(b) (3) and 162(b) of the Revenue Act of 1938.
It is unnecessary to state that history in full. The following is a resumé. In the *239majority opinion in Irwin v. Gavit, 1925, 268 U.S. 161, 168, 45 S.Ct. 475, 476, 69 L. Ed. 897, Justice Holmes stated: “This is a gift from the income of a very large fund, as income. It seems to us immaterial that the same amounts might receive a different color from their source.” The Income Tax Act of 1913, Section II, A, Subdivisions 1 and 2; B, D, and E, 38 Stat. 166 et seq., was under consideration. Mr. Justice Sutherland and Mr. Justice Butler dissented, relying on United States v. Merriam, 263 U.S. 179, 184, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547, and stated: “The money here sought to be taxed was not the fruits of the legacy; it was the legacy itself.” The nature of the difference of opinion in the Supreme Court was clear.
In 1927 in Whitehouse v. Commissioner, 7 B.T.A. 600, the Board of Tax Appeals, holding Irwin v. Gavit to be inapplicable, concluded that where a testator gave an annuity to a beneficiary under his will with no express direction to his executors to pay the annuity out of the corpus of his estate, the payment was exempt from income tax by the annuitant under the provisions of Section 213(b) (3) of the Revenue Act of 1921, 42 Stat. 237, Member Smith dissented placing his conclusion squarely on Irwin v. Gavit. The decision of the Board as to Whitehouse was affirmed by the Circuit Court of Appeals for the First Circuit, Commissioner of Internal Revenue v. Whitehouse, 38 F.2d 162, and by the Supreme Court in Burnet v. Whitehouse, 1931, 283 U.S. 148, 51 S.Ct. 374, 376, 75 L.Ed. 916, 73 A.L.R. 1534.
Mr. Justice McReynolds stated: “Irwin v. Gavit is not applicable. The bequest to Gavit was to be paid out of income from a definite fund. If that yielded nothing, he got nothing. This court concluded that the gift was of money to be derived from income and to be paid and received as income by the donee. Here the gift did not depend upon income, but was a charge [‘a sum certain’] upon the whole estate during the life of the legatee to be satisfied like any ordinary bequest.” The fact that Mrs. Whitehouse had received only income from corpus and nothing from corpus itself was deemed immaterial.
Helvering v. Butterworth, 290 U.S. 365, 54 S.Ct. 221, 78 L.Ed. 365, and Helvering, Commissioner v. Pardee, 290 U.S. 370, 54 S.Ct. 221, 78 L.Ed. 365, followed in 1933. Irwin v. Gavit threw no shadow after the dissenting opinion of Mr. Chief Justice Hughes in the Pardee case.
Approximately nine years later by the enactment of Section 111 of the Revenue Act of 1942, Congress amended Sections 22(b) (3) and 162 of the Internal Revenue Code and provided that a legatee should be taxed to the extent that income is actually distributed to him. The legislative history of the amendatory provisions of the 1942 Act demonstrates that Congress accepted the interpretation of the law laid down by the Supreme Court in the Whitehouse, Butterworth and Pardee decisions.
In 1944, the case of Belle Goldstine Frankel came before the Tax Court. See Frankel v. Commissioner, 3 T.C. 231. The majority (three judges dissenting), reviewing the provisions of Section 162(b) of the Revenue Act of 1938 and the decisions, concluded that where a testator had created a trust of the residue of his estate with the income therefrom payable to his widow with the right to supply any deficiency in the stated annuity of $20,000 from corpus at the request of the beneficiary, the widow having elected to take under the will in lieu of her statutory rights, the income from the trust was taxable to her. Mrs. Frankel apparently had not requested that her annuity be augmented from principal when necessary. In the taxable years in question (and insofar as the reports show in every other year) it had been unnecessary to take principal in order that Mrs. Frankel might receive the stated annuity. Judge Mellott distinguished the Whitehouse, Butterworth and Pardee decisions on the ground that Mrs. Frankel was not to receive a sum certain; viz., $20,000 payable periodically but might receive more since the income from the residue might amount to more. The Tax Court in effect turned the law back to Irwin v. Gavit. The decision was affirmed in 8 Cir. 144 F.2d 1023. Cf. Union Trust Co. v. Commissioner, 3 Cir., 115 F.2d 86.
The decision of the Tax Court in the Frankel case ruled its decision in the case at bar. There is no material difference between the facts of the two cases save that in the instant case it was necessary in each of the taxable years in question to augment income by additions from corpus in order that Mrs. Coleman might receive the full amount of the stated annuity and she had made the request in accordance with the provisions of the will that the income be thus augmented.
*240The Supreme Court in the Pardee case made it plain that if an “annuity” was created, as in the Frankel case and the case at bar, payable if necessary from the corpus of the trust, payments to the beneficiary may not be treated as payments of income even if that is what they are. Mrs. Frankel and Mrs. Coleman were as much entitled to a sum certain payable in all events as were Mrs. Whitehouse and Mrs. Pardee.
The logic of Irwin v. Gavit and of Mr. Chief Justice Hughes dissenting opinion in the Pardee case seems unassailable, but the important consideration is that the decisions of the Supreme Court in the White-house, Butterworth and Pardee cases may not be deemed to represent a “sport” 1 in the law and the older ruling of Irwin v. Gavit be now held to be governing. Congress has recognized the rule of these decisions as the law and has passed legislation amending the provisions of Section 162 of the Internal Revenue Code. The rule of stare decisis should be adhered to in the case at bar.
Since the decision of the Tax Court in the instant case is on all fours with its decision in the Frankel case the Tax Court decision in the instant case need not be discussed here.
For the reasons stated I concur in the majority decision.
I am authorized to state that Judge Goodrich concurs in the views expressed in this opinion.
See Screws v. United States, 65 S.Ct. 1031, citing Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561.