POWELL, District Judge:
This suit seeks refund of federal income taxes paid in the years 1960, 1961 and 1962. The District Court entered judgment for the taxpayer on December 9, 1968, 292 F.Supp. 571 (1968). It amended the judgment on June 23, 1969, 300 F.Supp. 465 (1969). The United States has taken this appeal.
[1157]*1157The taxpayer is a physician who practices medicine in Missoula, Montana. His family in 1959 included six children from ages 6 to 14. His income during the years in issue varied between $26,000 and $30,000. As a gift he deeded to his children real estate which was improved by a pharmacy, a rental apartment, and the offices of his medical practice. Following the conveyance the Montana State Probate Court appointed the taxpayer as guardian of the children. In this capacity the taxpayer collected rents from the pharmacy and apartment. Without a written lease, he also paid to himself as guardian for his children the reasonable rental value of his medical offices. The rents so collected were applied to the children’s insurance, health and education. Expenditures were made for private school tuition, musical instruments, music, swimming and public speaking lessons. The taxpayer also purchased an automobile for his oldest child, and paid travel expenses to New Mexico for his asthmatic child.
The fundamental issue presented involves the sufficiency of the property interest transferred. The transfer of a sufficient property interest justifies the taxation of the donees and the deduction of the rental payments under 26 U.S.C. § 162(a) (3) as ordinary and necessary business expenses by the donor.
In analyzing gift and leaseback cases, several factors must be considered: (1) the duration of the transfer; (2) the controls retained by the donor; (3) the use of the gift property for the benefit of the donor; and (4) the independence of the trustee. See, e. g., White v. Fitzpatrick, 193 F.2d 398 (2d Cir. 1951). None of the above factors prevents the income from being shifted in the instant case.
No issue is presented here as to the duration of the transfer — it was absolute and irrevocable; it was by warranty deed, unconditioned and unencumbered. See, e. g., Kirschenmann v. Westover, 225 F.2d 69 (9th Cir. 1955) (encumbered transfer). The absolute nature of the transfer distinguishes this case from those urged as controlling by the Government. See, e. g., Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940) (five year trust); Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440 (5th Cir. 1965) (ten year two month trust).
The taxpayer in this instance retained few, if any, controls over the trust property. He was obligated to and did pay the reasonable rental value of his medical offices. The fact that there was no written lease dispels any argument that the tenancy actually amounts to a reversion; the guardianship could at any time terminate the month to month tenancy. Likewise the taxpayer could at any time be terminated as guardian. Other controls retained over the trust property were consonant with possession as a tenant. Accordingly the findings of the District Court regarding both the irrevocable nature of transfer and the necessity of making rental payments are not clearly erroneous. This is in marked contrast with Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), where the taxpayer who assigned royalty agreements to his wife retained corporate control over the royalty agreements with the power to determine the amount of interest paid to his wife.
It is also apparent that trust benefits have not inured to the taxpayer as donor. The rental payments were expended solely for the insurance, health and education of the children. As discussed later, the taxpayer was not legally obligated to provide these benefits for his children.
Many decisions pivot on the issue of the independence of the trustee. See, Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440 (5th Cir. 1965); Brown v. Commissioner of Internal Revenue, 180 F.2d 926 (3d Cir. 1950); Ingle Coal Corp. v. Commissioner of Internal Revenue, 174 F.2d 569 (7th Cir. 1949); Skemp v. Commissioner of Internal Revenue, 168 F.2d 598 (7th Cir. 1948); Penn. v. C. I. R., 51 T.C. 144 [1158]*1158(1968); Alden B. Oakes, 44 T.C. 524 (1965); Albert T. Felix, 21 T.C. 794 (1954). The necessary independence of the trustee is achieved in a guardianship. The Montana Probate Court administers a guardianship with the same requisite independence of any court-administered trust. See, Mont.Rev.Codes §§ 91-4507, 4510, 4520 and 4522. Under the scrutiny of the court rental obligations must be met and accountings made. Mont.Rev.Codes § 91-4907. Guardianship property cannot be sold without court approval. Mont.Rev.Codes § 91-4518. Without belaboring the point there should be no lack of confidence in the supervision by our courts. A court appointed trustee — even though the taxpayer — offers sufficient independence.
If the taxpayer should at some future date breach his fiduciary duty toward his children, the government might well renew its challenge to the validity of the gift.
It must be emphasized that this transfer is not a sham or fraud. The Government adamantly asserts that this transfer lacks a business purpose, which therefore disqualifies it for a business deduction. Several leading cases employ such language. See, e. g., Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440, 443-444 (5th Cir. 1965); Commissioner of Internal Revenue v. Transport Trading & Term. Corp., 176 F.2d 570, 572 (2d Cir. 1949). Other cases require only that the transfer be grounded in substantial economic reality. See, Alden B. Oakes, 44 T.C. 524 (1965); Albert T. Felix, 21 T.C. 794 (1954). Cf. Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399, 406 (2d Cir. 1957). Alden B. Oakes, 44 T.C. 524 (1965), expressly eschews the “business purpose” test. See also, Skemp v. Commissioner of Internal Revenue, 168 F.2d 598 (7th Cir. 1948); John T. Potter, 27 T.C.. 200 (1956). However, a transfer solely to avoid taxes will not be recognized. Gregory v.
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POWELL, District Judge:
This suit seeks refund of federal income taxes paid in the years 1960, 1961 and 1962. The District Court entered judgment for the taxpayer on December 9, 1968, 292 F.Supp. 571 (1968). It amended the judgment on June 23, 1969, 300 F.Supp. 465 (1969). The United States has taken this appeal.
[1157]*1157The taxpayer is a physician who practices medicine in Missoula, Montana. His family in 1959 included six children from ages 6 to 14. His income during the years in issue varied between $26,000 and $30,000. As a gift he deeded to his children real estate which was improved by a pharmacy, a rental apartment, and the offices of his medical practice. Following the conveyance the Montana State Probate Court appointed the taxpayer as guardian of the children. In this capacity the taxpayer collected rents from the pharmacy and apartment. Without a written lease, he also paid to himself as guardian for his children the reasonable rental value of his medical offices. The rents so collected were applied to the children’s insurance, health and education. Expenditures were made for private school tuition, musical instruments, music, swimming and public speaking lessons. The taxpayer also purchased an automobile for his oldest child, and paid travel expenses to New Mexico for his asthmatic child.
The fundamental issue presented involves the sufficiency of the property interest transferred. The transfer of a sufficient property interest justifies the taxation of the donees and the deduction of the rental payments under 26 U.S.C. § 162(a) (3) as ordinary and necessary business expenses by the donor.
In analyzing gift and leaseback cases, several factors must be considered: (1) the duration of the transfer; (2) the controls retained by the donor; (3) the use of the gift property for the benefit of the donor; and (4) the independence of the trustee. See, e. g., White v. Fitzpatrick, 193 F.2d 398 (2d Cir. 1951). None of the above factors prevents the income from being shifted in the instant case.
No issue is presented here as to the duration of the transfer — it was absolute and irrevocable; it was by warranty deed, unconditioned and unencumbered. See, e. g., Kirschenmann v. Westover, 225 F.2d 69 (9th Cir. 1955) (encumbered transfer). The absolute nature of the transfer distinguishes this case from those urged as controlling by the Government. See, e. g., Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940) (five year trust); Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440 (5th Cir. 1965) (ten year two month trust).
The taxpayer in this instance retained few, if any, controls over the trust property. He was obligated to and did pay the reasonable rental value of his medical offices. The fact that there was no written lease dispels any argument that the tenancy actually amounts to a reversion; the guardianship could at any time terminate the month to month tenancy. Likewise the taxpayer could at any time be terminated as guardian. Other controls retained over the trust property were consonant with possession as a tenant. Accordingly the findings of the District Court regarding both the irrevocable nature of transfer and the necessity of making rental payments are not clearly erroneous. This is in marked contrast with Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), where the taxpayer who assigned royalty agreements to his wife retained corporate control over the royalty agreements with the power to determine the amount of interest paid to his wife.
It is also apparent that trust benefits have not inured to the taxpayer as donor. The rental payments were expended solely for the insurance, health and education of the children. As discussed later, the taxpayer was not legally obligated to provide these benefits for his children.
Many decisions pivot on the issue of the independence of the trustee. See, Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440 (5th Cir. 1965); Brown v. Commissioner of Internal Revenue, 180 F.2d 926 (3d Cir. 1950); Ingle Coal Corp. v. Commissioner of Internal Revenue, 174 F.2d 569 (7th Cir. 1949); Skemp v. Commissioner of Internal Revenue, 168 F.2d 598 (7th Cir. 1948); Penn. v. C. I. R., 51 T.C. 144 [1158]*1158(1968); Alden B. Oakes, 44 T.C. 524 (1965); Albert T. Felix, 21 T.C. 794 (1954). The necessary independence of the trustee is achieved in a guardianship. The Montana Probate Court administers a guardianship with the same requisite independence of any court-administered trust. See, Mont.Rev.Codes §§ 91-4507, 4510, 4520 and 4522. Under the scrutiny of the court rental obligations must be met and accountings made. Mont.Rev.Codes § 91-4907. Guardianship property cannot be sold without court approval. Mont.Rev.Codes § 91-4518. Without belaboring the point there should be no lack of confidence in the supervision by our courts. A court appointed trustee — even though the taxpayer — offers sufficient independence.
If the taxpayer should at some future date breach his fiduciary duty toward his children, the government might well renew its challenge to the validity of the gift.
It must be emphasized that this transfer is not a sham or fraud. The Government adamantly asserts that this transfer lacks a business purpose, which therefore disqualifies it for a business deduction. Several leading cases employ such language. See, e. g., Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Van Zandt v. Commissioner of Internal Revenue, 341 F.2d 440, 443-444 (5th Cir. 1965); Commissioner of Internal Revenue v. Transport Trading & Term. Corp., 176 F.2d 570, 572 (2d Cir. 1949). Other cases require only that the transfer be grounded in substantial economic reality. See, Alden B. Oakes, 44 T.C. 524 (1965); Albert T. Felix, 21 T.C. 794 (1954). Cf. Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399, 406 (2d Cir. 1957). Alden B. Oakes, 44 T.C. 524 (1965), expressly eschews the “business purpose” test. See also, Skemp v. Commissioner of Internal Revenue, 168 F.2d 598 (7th Cir. 1948); John T. Potter, 27 T.C.. 200 (1956). However, a transfer solely to avoid taxes will not be recognized. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Audano v. United States, 428 F.2d 251 (5th Cir. 1970).
The non-tax motives, as borne out by the record, are abundant and grounded in economic reality. The taxpayer desired to provide for the health and education of his children (RT 17, 18, and 21); avoid friction with partners in his medical practice (RT 18); withdraw his assets from the threat of malpractice suits (RT 21); and diminish the ethical conflict arising from ownership of a medical practice with an adjoining pharmacy. Neither substance nor impact denies this transfer professional or economic reality. This finding by the District Court is not clearly erroneous.
The Government further argues that even if deductions under 2’6 U.S.C. § 162(a) are allowable, expenditures for the children’s benefit merely serve to satisfy the taxpayer’s legal obligations to support them imposed by 26 U.S.C. § 677(b) and therefore are not allowable. The District Court determined that Rev.Rul. 56-484, 1956-2 Cum.Bull. at 23, establishes the applicability of local law in construing the meaning of support in Section 677(b). Montana law provides:
“The parent entitled to the custody of a child must give him support and education suitable to his circumstances.” Mont.Rev.Codes § 61-104.
The District Court held that the expenditures made were not the legal obligations of the taxpayer under Montana law. The only authority cited by the Government which suggests the contrary, Refer v. Refer, 102 Mont. 121, 56 P.2d 750 (1936), is entirely limited to its facts.
The last issue in this appeal is raised by the taxpayer: Does a court administered guardianship constitute a trust under 26 U.S.C. § 677(b)? Section 677 (or any regulation thereunder) does not refer to guardianships. However, the meaning of “trusts” is very broad and is specifically found in Section 641. Montana law, as interpreted [1159]*1159by the District Judge, 292 F.Supp. at 572-573, includes guardianships within the meaning of “trusts.” While a guardianship does not possess all trust requisites, for the purposes of taxation under Section 677, it must be considered a trust.
Affirmed.