TaNNENwald, Judge:
Respondent determined a deficiency of $35,115.10 in the income tax of petitioners for the calendar year 1964. The sole issue presented concerns the applicability of section 10331 when a taxpayer who has received the proceeds from a condemnation of his property dies before replacement of the condemned property can be completely effected.
FINDINGS OF FACT
All of the facts have been stipulated and are found accordingly.
The petitioners in this case are the Estate of John E. Morris and Margaret H. Morris, the deceased’s widow. At the time their petition was filed, the office address of the executors and the residence of Mrs. Morris were in Salisbury, Md. Pursuant to section 6013(a) (3), petitioners timely filed a joint return for the calendar year 1964 with the district director of internal revenue, Baltimore, Md.
The deceased, John E. Morris, and Margaret H. Morris, his wife, owned undivided one-half interests as tenants in common in certain improved real property consisting of the land and buildings thereon located on Calvert Street in Salisbury, Md. (hereinafter the Calvert Street property). The Calvert Street property was leased for commercial purposes.
In the fall of 1960, the Salisbury Planning Commission held public hearings on a proposed “Central Business District Revitalization Plan.” Subsequently, in 1961, the mayor and Council of Salisbury formally concurred with the plan. In 1962, a public hearing was held and formal approval was given to a revised “Northside Project Urban Renewal Plan” (hereinafter the Northside Plan). The Calvert Street property was located within the area affected by the Northside Plan, and after these hearings Mr. and Mrs. Morris knew their property would be condemned. Federal approval of the Northside Plan was given in April 1962.
The Calvert Street property was not formally condemned until April 9 and 10, 1964. Damages were set at $338,600. This sum, plus $1,808.35 in interest, was paid to Mr. and Mrs. Morris on May 12,1964.
In the interval between formal Federal approval of the Northside Plan in April 1962 and the receipt by Mr. and Mrs. Morris of the condemnation proceeds in May 1964, the following steps were taken with regard to the replacement of the Calvert Street property:
(1) In May 1962, the services of Irving M. Footlik & Associates (hereinafter Footlik), a consulting engineering and architectural firm, were requested with regard to replacing the Calvert Street property.
(2) In June and August 1962, surveys of certain real property located at Brown and Naylor Streets in Salisbury (hereinafter the Brown Street property) were obtained.
(3) Throughout the latter months of 1962, extensive consultations were held with Footlik and plans for the replacement facility were discussed.
(4) The Brown Street property was purchased by Mr. and Mrs. Morris as tenants in common in November 1962 with the intent of constructing thereon facilities to replace the Calvert Street property.
(5) After Mr. and Mrs. Morris purchased the Brown Street property, many conferences were held with the general contracting firm of J. Roland Dashiell & Sons, Inc. (hereinafter Dashiell). Dashiell had submitted a budget price to the Morrises based on the Footlik plans.
(6) Between January and April 1964, Dashiell broke ground on the Brown Street property by razing unwanted buildings, cutting the property to grade, and taking soil borings to determine final footings data pursuant to an understanding with the Morrises that it would build the building. On April 1,1964, based on final drawings, Dashiell quoted a total construction price of $483,413.75, which included work already completed, including razing two buildings, grading, and soil borings.
At the time Mr. and Mrs. Morris received the condemnation proceeds, they were ready to enter a written contract with Dashiell but were waiting for the condemnation award to become final upon the expiration of the 30-day appeal period.
Two days after Mr. and Mrs. Morris received the condemnation proceeds, they purchased $340,000 of General Motors Acceptance Corp. short-term commercial paper. This commercial paper had due dates ranging from 60 to 210 days. The due dates corresponded with the financial requirements of the contemplated construction schedule for the replacement facility.
On May 24, 1964, John E. Morris died suddenly and unexpectedly. His will was admitted to probate on June 1, 1964, by the Orphans’ Court of Wicomico County, Md. This will named his three sons as executors and trustees with broad powers.
On August 4,1964, the sons, as coexecutors under the decedent’s will, filed a petition in the Orphans’ Court seeking to transfer to the co-trustees under the will the decedent’s interest in both the Brown Street property and the condemnation proceeds. The petition stated that such a transfer was necessary in order to proceed with the building plans for the replacement facility “in the same manner and on the same basis as the deceased and his family had started and intended to continue except for his death.” This petition was granted on the same date.
On August 12, 1964, the sons, as trustees under the decedent’s will, and Mrs. Morris entered a written contract with Dashiell for the construction of the replacement facilities on the Brown Street property. Construction, however, had already begun on July 15, 1964.
Construction was completed and the new facilities, which were solely intended to replace the Calvert Street property, were occupied in April 1965. Full payment of the cost of the new facilities was made on or before May 6,1965.
OPINION
In approaching our decision herein, it is important to keep in mind precisely what is involved. Ooncededly, the trust and the decedent are separate taxpayers. But the issue is not the right of one taxpayer on his own behalf to exercise a right of election conferred upon another taxpayer. The testamentary trustees are not seeking to exercise any right of election. The return in question is that of the decedent and his wife for the year of death and it is the decedent who is claiming his right of election on that return.
The focus of this case is a narrow one. Decedent’s property was condemned and he received the proceeds thereof in the taxable year of, but prior to, his death. Also prior to his death, decedent had developed detailed plans for replacement and had embarked upon a course of implementation of those plans by acquiring new land and reaching an imderstanding with the contractors as regards the replacement building. In accordance with that understanding, prior to death, the land had been prepared for the erection of the building. The decedent’s plans for replacement were fulfilled after his death by the residuary trustees under his will through the execution of the written contract to erect the new building and the completion of its erection.
The single question2
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TaNNENwald, Judge:
Respondent determined a deficiency of $35,115.10 in the income tax of petitioners for the calendar year 1964. The sole issue presented concerns the applicability of section 10331 when a taxpayer who has received the proceeds from a condemnation of his property dies before replacement of the condemned property can be completely effected.
FINDINGS OF FACT
All of the facts have been stipulated and are found accordingly.
The petitioners in this case are the Estate of John E. Morris and Margaret H. Morris, the deceased’s widow. At the time their petition was filed, the office address of the executors and the residence of Mrs. Morris were in Salisbury, Md. Pursuant to section 6013(a) (3), petitioners timely filed a joint return for the calendar year 1964 with the district director of internal revenue, Baltimore, Md.
The deceased, John E. Morris, and Margaret H. Morris, his wife, owned undivided one-half interests as tenants in common in certain improved real property consisting of the land and buildings thereon located on Calvert Street in Salisbury, Md. (hereinafter the Calvert Street property). The Calvert Street property was leased for commercial purposes.
In the fall of 1960, the Salisbury Planning Commission held public hearings on a proposed “Central Business District Revitalization Plan.” Subsequently, in 1961, the mayor and Council of Salisbury formally concurred with the plan. In 1962, a public hearing was held and formal approval was given to a revised “Northside Project Urban Renewal Plan” (hereinafter the Northside Plan). The Calvert Street property was located within the area affected by the Northside Plan, and after these hearings Mr. and Mrs. Morris knew their property would be condemned. Federal approval of the Northside Plan was given in April 1962.
The Calvert Street property was not formally condemned until April 9 and 10, 1964. Damages were set at $338,600. This sum, plus $1,808.35 in interest, was paid to Mr. and Mrs. Morris on May 12,1964.
In the interval between formal Federal approval of the Northside Plan in April 1962 and the receipt by Mr. and Mrs. Morris of the condemnation proceeds in May 1964, the following steps were taken with regard to the replacement of the Calvert Street property:
(1) In May 1962, the services of Irving M. Footlik & Associates (hereinafter Footlik), a consulting engineering and architectural firm, were requested with regard to replacing the Calvert Street property.
(2) In June and August 1962, surveys of certain real property located at Brown and Naylor Streets in Salisbury (hereinafter the Brown Street property) were obtained.
(3) Throughout the latter months of 1962, extensive consultations were held with Footlik and plans for the replacement facility were discussed.
(4) The Brown Street property was purchased by Mr. and Mrs. Morris as tenants in common in November 1962 with the intent of constructing thereon facilities to replace the Calvert Street property.
(5) After Mr. and Mrs. Morris purchased the Brown Street property, many conferences were held with the general contracting firm of J. Roland Dashiell & Sons, Inc. (hereinafter Dashiell). Dashiell had submitted a budget price to the Morrises based on the Footlik plans.
(6) Between January and April 1964, Dashiell broke ground on the Brown Street property by razing unwanted buildings, cutting the property to grade, and taking soil borings to determine final footings data pursuant to an understanding with the Morrises that it would build the building. On April 1,1964, based on final drawings, Dashiell quoted a total construction price of $483,413.75, which included work already completed, including razing two buildings, grading, and soil borings.
At the time Mr. and Mrs. Morris received the condemnation proceeds, they were ready to enter a written contract with Dashiell but were waiting for the condemnation award to become final upon the expiration of the 30-day appeal period.
Two days after Mr. and Mrs. Morris received the condemnation proceeds, they purchased $340,000 of General Motors Acceptance Corp. short-term commercial paper. This commercial paper had due dates ranging from 60 to 210 days. The due dates corresponded with the financial requirements of the contemplated construction schedule for the replacement facility.
On May 24, 1964, John E. Morris died suddenly and unexpectedly. His will was admitted to probate on June 1, 1964, by the Orphans’ Court of Wicomico County, Md. This will named his three sons as executors and trustees with broad powers.
On August 4,1964, the sons, as coexecutors under the decedent’s will, filed a petition in the Orphans’ Court seeking to transfer to the co-trustees under the will the decedent’s interest in both the Brown Street property and the condemnation proceeds. The petition stated that such a transfer was necessary in order to proceed with the building plans for the replacement facility “in the same manner and on the same basis as the deceased and his family had started and intended to continue except for his death.” This petition was granted on the same date.
On August 12, 1964, the sons, as trustees under the decedent’s will, and Mrs. Morris entered a written contract with Dashiell for the construction of the replacement facilities on the Brown Street property. Construction, however, had already begun on July 15, 1964.
Construction was completed and the new facilities, which were solely intended to replace the Calvert Street property, were occupied in April 1965. Full payment of the cost of the new facilities was made on or before May 6,1965.
OPINION
In approaching our decision herein, it is important to keep in mind precisely what is involved. Ooncededly, the trust and the decedent are separate taxpayers. But the issue is not the right of one taxpayer on his own behalf to exercise a right of election conferred upon another taxpayer. The testamentary trustees are not seeking to exercise any right of election. The return in question is that of the decedent and his wife for the year of death and it is the decedent who is claiming his right of election on that return.
The focus of this case is a narrow one. Decedent’s property was condemned and he received the proceeds thereof in the taxable year of, but prior to, his death. Also prior to his death, decedent had developed detailed plans for replacement and had embarked upon a course of implementation of those plans by acquiring new land and reaching an imderstanding with the contractors as regards the replacement building. In accordance with that understanding, prior to death, the land had been prepared for the erection of the building. The decedent’s plans for replacement were fulfilled after his death by the residuary trustees under his will through the execution of the written contract to erect the new building and the completion of its erection.
The single question2 before us is whether, under the foregoing circumstances, the decedent should be deprived of the right to postpone the recognition of gain from the condemnation realized in the year of death in accordance with the election provided for in section 1033 (a) (3) (A).3 Petitioners argue that lie should not be so deprived. Respondent argues that since the replacement was made, not by the decedent but by the residuary trust, which was concededly a separate entity for tax purposes, the right of election died with decedent. For the reasons hereinafter stated, we agree with petitioners.
To a large degree, our decision herein turns upon the effect to be given to Estate of Isaac Goodman, 17 T.C. 1017 (1951), revd. 199 F. 2d 895 (C.A. 3, 1952), which involved strikingly similar facts. In that case, the condemnation and the receipt of the proceeds thereof also occurred prior to the decedent’s death and the reinvestment was made by the decedent’s executors. We held that, under the language of the applicable statute (section 112(f) of the Internal Revenue Code of 1939 as it existed prior to amendment in 1951) ,4 the replacement was required to be made by tlie same taxpayer whose property was condemned and that, since the decedent’s estate was a separate taxable entity, that requirement was not satisfied. The Third Circuit Court of Appeals reversed on the grounds that our reading of the applicable statute and regulations was too narrow, that it was sufficient if the replacement was made either by the taxpayer “or one acting on his behalf” (see 199 F. 2d at 898), and that decedent’s executors should be considered as having acted in this role.
Concededly, there are differences between the situation which existed in Goodman and that which exists herein. First, it can be argued that the replacement frame of reference of section 112(f) of the Internal Revenue Code of 1989 did not, as does section 1033(a) (3), which incorporated the provisions of the 1951 amendment to section 112(f),5 specifically speak in terms of “the taxpayer.” But we do not think that the semantic difference between the two provisions accords an “active” as contrasted with a “passive” aura (see 199 F. 2d at 896) to section 1033 (a) (3) and requires us to adopt the narrow interpretation of that section which respondent urges upon us. There is nothing in the legislative history of the 1951 amendment or in the enactment of section 1033 of the Internal Revenue Code of 1954 which indicates that Congress intended a different reading of the statute because of the use of the phrase “the taxpayer” so as to produce a result contrary to that reached by the Court of Appeals in Goodman. See H. Rept. No. 798, 82d Cong., 1st Sess. (1951); S. Rept. No. 1052, 82d Cong., 1st Sess. (1951); H. Rept. No. 1337, 83d Cong., 2d Sess., p. A268 (1954) ; S. Rept. No. 1622,83d Cong., 2d Sess., pp. 108,427 (1954).
A second distinction rests upon the contention that Goodman involved a replacement by executors, whereas here the replacement was made by residuary trustees. We find it unnecessary to dwell upon this distinction and the nuances which may stem from the legal theory that executors may be considered “personal representatives” of a decedent, a categorization which does not easily apply to testamentary trustees. Compare Briggs v. Walker, 171 U.S. 466, 471 (1898); Unsatisfied Claim and Judgment Fund v. Hamilton, 256 Md. 56, 259 A. 2d 303 (1969); Johnston v. Willis, 147 Md. 237, 127 Atl. 862 (1925). Our focus in this case is upon the fact that the testamentary trustees were simply carrying to completion the very plans developed and partially implemented by the decedent prior to his death, a course of action which was contemplated by, and furnished the impetus for, the order of the Orphans’ Court which directed that the land and building replacement funds be turned over by the executors to the trustees. In this context, we think that replacement by trustees should be treated no differently than replacement by executors. Moreover, we note that, in point of fact, it was the executors who set in motion the necessary legal proceedings to obtain permission to turn over the funds to the residuary trustees, thereby putting the latter in the position to make the replacement.
We do not have before us a situation where the owner of condemned property voluntarily chooses to have the replacement made by another. Compare Fort Hamilton Manor, Inc., 51 T.C. 107, 718-719 (1969), on appeal (C.A. 2, Jan. 16, 1970); Feinberg v. Commissioner, 377 F. 2d 21, 27-28 (C.A. 8, 1967), affirming 45 T.C. 635, 639-640 (1966). Nor is the situation herein analogous to that where a partnership owns the condemned property and the proceeds are reinvested by some or all the partners and in differing fashions in accordance with their separate decisions, and where, in any event, special statutory provisions are involved. Compare Mihran Demirjian, 54 T.C. 1691 (1970), on appeal (C.A. 3, Nov. 6, 1970).
Here, the decedent was the architect of the plan of replacement and had, prior to his death, set in motion the actions to implement that plan. He was precluded from completing those actions by the untimely event of death. Thereafter, his successors in interest, proceeding in strict accordance with the decedent’s plan, finished the job. Under these circumstances, although the issue is not free from doubt, we think that it can be said that, for the purpose of perfecting the right of election conferred upon the decedent by section 1033(a) (3), the testamentary trustees were acting on his behalf in making the replacement.
In view of the foregoing and taking into account that section 1033 is regarded as a relief provision to be liberally construed (see, e.g., S. & B. Realty Co., 54 T.C. 863, 870 (1970)), we will no longer follow our decision in Estate of Isaac Goodman, supra, but rather will apply the rationale of the Third Circuit Court of Appeals.6 As a further consequence, we also disagree with the respondent’s pronouncement in Rev. Rul. 64-161, 1964-1 C.B. (Part 1) 298, to the extent that it rejects the reasoning of the Court of Appeals in Goodmam, and asserts that the command of section 1033 (a) (3) inexorably prevents a realistic examination of the underlying facts in order to determine who is “the taxpayer.” 7 Perhaps, as respondent suggests in Kev. Eul. 64 — 161, supra, there will be difficult questions in determining the proper basis for the replaced property in the hands of the testamentary trustees. But those questions are not before us. In any event, we do not think such purported difficulties can justify depriving the decedent herein of his right of election.
Eeviewed 'by the Court.
Decision mil he entered for the petitioners.