OPINION.
Tyson, Judge'.
The first issue herein involves the children’s trust as last amended on December 27, 1935, and the primary question of whether the value of the entire corpus of that trust, stipulated to be in the amount of $214,572.13 at date of decedent’s death, or any portion thereof, is includible in the decedent’s gross estate. The pertinent provisions of section 811 of the Internal Kevenue Code are set out in the margin.1
In the deficiency notice respondent determined that the entire corpus of the children’s trust is includible in decedent’s gross estate under the provisions of section 811 (c) and 811 (d), but the parties herein have stipulated that the “transfers made by decedent to the Children’s Trust on July 16,1929, January 1,1935 and November 15,1935” and also the trust amendment of December 27,1935, “were not made by decedent in contemplation of death,” and we have so found.
On the remaining question involved in the first issue, both parties cite, as the particularly pertinent provision, that portion of section 811 (d) (2) which provides that the value of the gross estate of the decedent shall be determined by including the value, at the time of his death, of property transferred prior to June 22, 1936, by decedent in trust “where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke * *
. Respondent contends that at date of his death decedent had the power to alter the trust within the meaning of section 811 (d) (2) in that he, the donor, reserved the power at any time to become trustee and, under the power specifically given the trustee, could terminate the trust in whole or in part, thereby altering each minor beneficiary’s interest in the income and corpus of the trust from one of future enjoyment to one of immediate ownership and enjoyment.
Petitioner contends that the decedent had no power at the date of his death to change the enjoyment of the trust property within the intendment of section 811 (d) (2), for the reasons: (1) That, even if, under the decedent’s reserved power to remove the trustee, he could have designated himself as trustee and in the latter capacity could have terminated the trust, there did not exist “at the date of his death” any power to alter, but only a right to acquire such a power; and (2) that the decedent’s acquisition and exercise of a power to terminate could not have changed the enjoyment of the minor beneficiaries at date of death. In the alternative, petitioner contends that Mel H. Loughridge, and not the decedent, was the transferor of the property originally transferred in trust on July 16, 1929, so that at least three-fourths of the corpus of the trust is not includible in decedent’s gross estate, even if he had a power within the meaning of section 811 (d) (2).
As to the alternative contention, it is our opinion that the facts herein clearly establish that the decedent made the transfers to the children’s trust, including the one on July 16, 1929, within the meaning of section 811 (d) (2). The deed of gift by Mel H. Loughridge, dated July 15, 1929, specifically gives, grants, and conveys certain securities to her two sons, Paul and William, their heirs, and assigns forever. The fact that Mel H. Loughridge expressed, in that deed, her request that Paul (and William if he should later marry and have children) use such part of his gift as he should determine to create a trust for his children, did not change the character of the gift as absolute, since it is obvious that whether such request was acceded to or not was entirely discretionary with Paul or William, as the case might be. It is our opinion that in the declaration of trust dated July 16,1929, Paul Loughridge alone was the donor of the securities thereby transferred in trust. Having concluded that the transfers in trust were made by the decedent, the next question is whether the enjoyment thereof was subject at date of death to any change through the decedent’s exercise of a power to alter, amend, or revoke within the meaning of that section. This question turns upon the character of the beneficiaries’ right of enjoyment and of the decedent’s reserved powers under the provisions of the December 27,1935. amended trust instrument summarized in our findings of fact.
Aside from any question as to what technical legal estate each of decedent’s minor children had under the provisions of the trust at the date of decedent’s death; that is, whether regarded as a vested interest subject to divestiture by reason of various contingencies, including the beneficiary’s death, it is clear that they did not have a present right of “enjoyment” of either the income or principal of the trust fund. Termination of the trust under the trustee’s reserved power to do so at any time would have changed the right of each of the decedent’s minor children from one of future enjoyment to one of immediate ownership in fee simple in that, during continuation of the trust, each child’s enjoyment of the income of his share was postponed until and dependent upon his attaining 21 years of age and his enjoyment of the corpus of his share was postponed until termination of the trust at a future date upon the event of the younger of Charles and Ruth attaining age 40 or the death of the survivor of those 2 children before attaining age 40, whereas termination under the reserved power would have freed each child’s share of the trust and resulted in the immediate transfer to him of fee simple ownership of both corpus and income, together with the present enj oyment thereof. Also, termination of the trust would have cut off and shifted the contingent interests enumerated in the trust instrument, including interests in the accumulated income of the share of any child who died before attaining age 21; in the current income of the share of any child who died without issue after attaining age 21 and during continuation of the trust; and in the remainder interest of decedent’s wife or her estate in the share of any child who died without exercising his or her power of appointment and without being survived by a spouse and/or issue.
In Commissioner v. Estate of Holmes, 326 U. S. 480, rehearing denied, 327 U. S. 813, it was held that the term “enjoyment” as used in section 811 (d) (2) is not a term of art, but one connoting substantial present economic benefit, rather than technical vesting of title or estate, and it was further held that a power to terminate the contingencies upon which the right of enjoyment rests, so as to make certain that present enjoyment becomes the right of a beneficiary who may never have it if the power is not exercised, is a power which affects not only an acceleration of the time of enjoyment, but also the very right, itself, of enjoyment, and is a power “to alter, amend, or revoke” within the meaning of that section.
There is a variation as between the Holmes case and the instant case in the wording of the reservation of the power to terminate.
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OPINION.
Tyson, Judge'.
The first issue herein involves the children’s trust as last amended on December 27, 1935, and the primary question of whether the value of the entire corpus of that trust, stipulated to be in the amount of $214,572.13 at date of decedent’s death, or any portion thereof, is includible in the decedent’s gross estate. The pertinent provisions of section 811 of the Internal Kevenue Code are set out in the margin.1
In the deficiency notice respondent determined that the entire corpus of the children’s trust is includible in decedent’s gross estate under the provisions of section 811 (c) and 811 (d), but the parties herein have stipulated that the “transfers made by decedent to the Children’s Trust on July 16,1929, January 1,1935 and November 15,1935” and also the trust amendment of December 27,1935, “were not made by decedent in contemplation of death,” and we have so found.
On the remaining question involved in the first issue, both parties cite, as the particularly pertinent provision, that portion of section 811 (d) (2) which provides that the value of the gross estate of the decedent shall be determined by including the value, at the time of his death, of property transferred prior to June 22, 1936, by decedent in trust “where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke * *
. Respondent contends that at date of his death decedent had the power to alter the trust within the meaning of section 811 (d) (2) in that he, the donor, reserved the power at any time to become trustee and, under the power specifically given the trustee, could terminate the trust in whole or in part, thereby altering each minor beneficiary’s interest in the income and corpus of the trust from one of future enjoyment to one of immediate ownership and enjoyment.
Petitioner contends that the decedent had no power at the date of his death to change the enjoyment of the trust property within the intendment of section 811 (d) (2), for the reasons: (1) That, even if, under the decedent’s reserved power to remove the trustee, he could have designated himself as trustee and in the latter capacity could have terminated the trust, there did not exist “at the date of his death” any power to alter, but only a right to acquire such a power; and (2) that the decedent’s acquisition and exercise of a power to terminate could not have changed the enjoyment of the minor beneficiaries at date of death. In the alternative, petitioner contends that Mel H. Loughridge, and not the decedent, was the transferor of the property originally transferred in trust on July 16, 1929, so that at least three-fourths of the corpus of the trust is not includible in decedent’s gross estate, even if he had a power within the meaning of section 811 (d) (2).
As to the alternative contention, it is our opinion that the facts herein clearly establish that the decedent made the transfers to the children’s trust, including the one on July 16, 1929, within the meaning of section 811 (d) (2). The deed of gift by Mel H. Loughridge, dated July 15, 1929, specifically gives, grants, and conveys certain securities to her two sons, Paul and William, their heirs, and assigns forever. The fact that Mel H. Loughridge expressed, in that deed, her request that Paul (and William if he should later marry and have children) use such part of his gift as he should determine to create a trust for his children, did not change the character of the gift as absolute, since it is obvious that whether such request was acceded to or not was entirely discretionary with Paul or William, as the case might be. It is our opinion that in the declaration of trust dated July 16,1929, Paul Loughridge alone was the donor of the securities thereby transferred in trust. Having concluded that the transfers in trust were made by the decedent, the next question is whether the enjoyment thereof was subject at date of death to any change through the decedent’s exercise of a power to alter, amend, or revoke within the meaning of that section. This question turns upon the character of the beneficiaries’ right of enjoyment and of the decedent’s reserved powers under the provisions of the December 27,1935. amended trust instrument summarized in our findings of fact.
Aside from any question as to what technical legal estate each of decedent’s minor children had under the provisions of the trust at the date of decedent’s death; that is, whether regarded as a vested interest subject to divestiture by reason of various contingencies, including the beneficiary’s death, it is clear that they did not have a present right of “enjoyment” of either the income or principal of the trust fund. Termination of the trust under the trustee’s reserved power to do so at any time would have changed the right of each of the decedent’s minor children from one of future enjoyment to one of immediate ownership in fee simple in that, during continuation of the trust, each child’s enjoyment of the income of his share was postponed until and dependent upon his attaining 21 years of age and his enjoyment of the corpus of his share was postponed until termination of the trust at a future date upon the event of the younger of Charles and Ruth attaining age 40 or the death of the survivor of those 2 children before attaining age 40, whereas termination under the reserved power would have freed each child’s share of the trust and resulted in the immediate transfer to him of fee simple ownership of both corpus and income, together with the present enj oyment thereof. Also, termination of the trust would have cut off and shifted the contingent interests enumerated in the trust instrument, including interests in the accumulated income of the share of any child who died before attaining age 21; in the current income of the share of any child who died without issue after attaining age 21 and during continuation of the trust; and in the remainder interest of decedent’s wife or her estate in the share of any child who died without exercising his or her power of appointment and without being survived by a spouse and/or issue.
In Commissioner v. Estate of Holmes, 326 U. S. 480, rehearing denied, 327 U. S. 813, it was held that the term “enjoyment” as used in section 811 (d) (2) is not a term of art, but one connoting substantial present economic benefit, rather than technical vesting of title or estate, and it was further held that a power to terminate the contingencies upon which the right of enjoyment rests, so as to make certain that present enjoyment becomes the right of a beneficiary who may never have it if the power is not exercised, is a power which affects not only an acceleration of the time of enjoyment, but also the very right, itself, of enjoyment, and is a power “to alter, amend, or revoke” within the meaning of that section.
There is a variation as between the Holmes case and the instant case in the wording of the reservation of the power to terminate. There the donor was also the trustee, and the Court concluded, up-: \ the language of the indenture which was not wholly clear, that it could not say that the donor did not reserve the power to himself .as donor and thus found it unnecessary to rule on a contention that the power was not within the meaning of section 811 (d) (2) because reserved to the decedent not in the capacity of donor, but only in that of trustee. However, in the following authorities it is made clear that, had the decedent been trustee at the date of his death, with the power to alter or terminate, such power would be within the purview of section 811 (d) (2), just as it would have been had such power been reserved by decedent to himself as grantor. Welch v. Terhune, 126 Fed. (2d) 695; certiorari denied, 317 U. S. 644 (C. C. A., 1st Cir., 1942); Union Trust Co. of Pittsburgh v. Driscoll, 138 Fed. (2d) 152; certiorari denied, 321 U. S. 764 (C. C. A., 3d Cir., 1943); Estate of John Moir, 47 B. T. A. 765; Estate of Albert E. Nettleton, 4 T. C. 987; Estate of Edward L. Hurd, 6 T. C. 819; affd., 160 Fed. (2d) 610; Estate of Charles B. DuCharme, 7 T. C. 705; affirmed on this point, 164 Fed. (2d) 959, 963; and Estate of Milton J. Budlong, 7 T. C. 756; affirmed on this point, 165 Fed. (2d) 142. Under the Holmes and the other cases cited, it is not to be questioned that, had the decedent herein been the trustee at date of his death, he would have had the power to change the beneficiary’s enjoyment within the meaning of section 811 (d) (2).
While the decedent was not trustee at the date of his death, nevertheless, except for the fact that there could be no assurance of securing the resignation of the trustee until not less than thirty days after the delivery to him of a notice requiring such resignation, the decedent had the full power at the date of his death to require the resignation of the trustee, to name himself as successor trustee, and then to immediately alter the trust in respects mentioned above through termination thereof. More briefly stated, it may be said that, except as limited by the necessity of required notice, the decedent, at the date of his death, had the power to take all necessary steps to alter the trust by terminating it. With regard to the required notice, we think the situation is covered by section 811 (d) (3), supra, which states, in material part, that “For the purposes of this subsection the power to alter, amend, or revoke shall be considered to exist on the date of the decedent’s death even though the exercise of the power is subject to a precedent giving of notice * * *”; and that consequently the provision in the trust instrument as to the required notice is immaterial. So we conclude that at the date of his death decedent had the power to alter the trust within the provisions of section 811 (d) (2), supra.
In the instant case, what was said in the Holmes case, supra, is apropos: “A donor who keeps so strong a hold over the actual and immediate enjoyment of what he puts beyond his own power to retake has not divested himself of that degree of control which section 811 (d) (2) requires in order to avoid the tax.”
On the first issue we sustain the respondent’s determination that the value of the entire corpus of the children’s trust in the amount of $214,572.13 is includible in the decedent’s gross estate.
The second issue involves the question of whether all or any part of the value (amounting to $220,365.54 at date of decedent’s death) of the property received by decedent from the Fred H. Harmon trust and included in the decedent’s gross estate, should be allowed as a deduction as previously taxed property under section 812 (c) of the Internal Revenue Code, the pertinent parts of which are set out in the margin.2
The issue involves no question of whether the entire value of such trust property is properly included in the decedent’s gross estate, but solely the question of the allowance or disallowance of the claimed deduction, which, under the cited section, may be allowed only where a Federal estate tax was finally determined and paid by or on behalf of the prior decedent’s estate and, further, only to the extent that the value of such property was included in the gross estate of the prior decedent.
It is axiomatic that deductions are matters of legislative grace and that a taxpayer seeking a deduction must meet all of the requirements prescribed by the statute granting the deduction claimed. The statutory provision involved grants a deduction for the purpose of exempting the same property from being twice used as a measure of estate tax where such property is included in two different gross estates of two different decedents within five years.
A decision of this issue in favor of petitioner would necessarily require proof that all or some part of the value of the Harmon trust property received by petitioner’s decedent was included in the prior decedent’s estate and that the estate tax thereon was paid by that estate; and the burden of supplying this proof rests upon petitioner. In our opinion petitioner has failed to meet this burden.
The facts herein disclose that Fred H. Harmon, grantor of the trust involved, predeceased the petitioner’s decedent within less than five years; that the Harmon estate tax return stated that the entire trust assets had a value of $430,716, but only $26,733.27 thereof was included in the reported gross estate of $71,066.14 for tax purposes and the estate tax computed and paid amounted to $97.74; that the respondent thereafter determined a deficiency of $73,563.54 by sole reason of including in Harmon’s gross estate the entire value of the trust property; that the Harmon estate filed a petition in this Court contesting such deficiency; that in such proceeding the parties stipulated, inter alia, that the net estate tax liability was $13,773.44; and that a decision of this Court was entered in accordance with the stipulation. There is no stipulation or other evidence in this record as to what portion of the value of the trust property was included in Harmon’s estate for the purpose of computing the amount of $13,-773.44 estate tax finally determined pursuant to stipulation and paid by or on behalf of the estate of Harmon, the prior decedent. However, the foregoing facts speak for themselves in showing definitely that the entire reported value of $430,716 of the trust property was not included in Harmon’s gross estate for tax purposes, for if it had been the estate tax liability , would have amounted to $73,661.28, the tax of $97.74 reported phis the asserted deficiency of $73,563.54. So far as the foregoing facts show, it would seem apparent that some portion of the value of the trust property was included in Harmon’s gross estate for the purpose of computing the estate tax liability of $13,773.44, but the amount of such portion and the extent to which it included the value of decedent’s interest in the trust property are not determinable from the record in this proceeding.
We are not here concerned with the fact that the Harmon estate reached a stipulated settlement of a proceeding involving the question of the inclusion of the value of the entire trust property in that estate. The essential matter to be determined is whether petitioner has met the requirements of the statute for the deduction sought; namely, was this decedent’s share of the Harmon trust property valued at $220,-365.54, or any identifiable portion thereof, actually included in the Harmon estate for tax purposes and the tax thereon finally determined and paid by or on behalf of that estate. On this record the answer must be in the negative.
Since, as above stated, some portion of the value of decedent’s interest in the Harmon trust property was included in the prior decedent’s gross estate for tax purposes, but the amount thereof is not shown, the respondent has failed to sustain his burden of proof on his affirmative allegation that in his determination he erred in the amount which he allowed the decedent’s estate as a deduction for previously taxed property in the estate of a prior decedent. Accordingly, respondent’s affirmative plea for an increase of $18,709.45 in the asserted deficiency is denied.
On the second issue, we sustain the respondent’s determination.
Reviewed by the Court.
Decision will be entered vmder Rule 50.