opinion.
Arundell:
In 1925 the petitioner relinquished his power of revocation of two trusts established in 1917. This act is held by respondent to constitute a gift within the meaning of the gift-tax provisions of the Revenue Act of 1924, and he has asserted a deficiency in gift tax in the amount of $2,465,681.20.
A lengthy stipulation of facts was filed which is incorporated herein by reference as our findings of fact. A brief summary of the facts will suffice for the purposes of understanding and deciding the case.
The petitioner, at all times material hereto, has resided in New York, N. Y., and thus has been a resident of the United States. On June 28, 1917, he established two trusts in New Jersey; one for the benefit of his only son, Edmund,- and the other for the benefit of his only daughter, Lucile G. Gimbel. An individual and a trust company were the original trustees'. The trusts were to continue for ten years unless sooner terminated. A substantial amount was to be paid annually to the beneficiary of each trust and at the end of the ten-year period the principal of each trust was to be paid to the beneficiary, free of all restrictions.
There were provisions for the children of á beneficiary in case the beneficiary died within the ten-year period, and, in the event of the death of a beneficiary without surviving children, then the petitioner was to receive the principal and accumulations.
[1182]*1182The petitioner retained the right to alter or revoke each trust except as to income received or accrued, and to direct the making of all changes in the securities included in the trust property. Subject to the petitioner’s approval, the trustees were authorized to do all things necessary in connection with the trust property. The trustees were given the custody of the trust funds and all1 securities were listed in their names or in the names of their nominees.
Various changes in the trust agreements were made from time to time. For example, in 1921 the petitioner gave to two individuals the power, formerly reserved to himself, of directing and approving the management of the trusts.
On July 13, 1925, the final change in the trusts was made, whereby the petitioner relinquished his power to alter, modify, or revoke the trusts.
The corporate trustee continued throughout the period, but there were changes in the individual trustees. The petitioner was never a trustee.
The petitioner delivered to the trustees the securities constituting the corpus of the trust on June 28, 1917, and the trustees have held all securities of the trust since that date. The trustees have collected all income and profits of the trust and have distributed a substantial part thereof to the two beneficiaries, as provided by the agreements. The petitioner has never received any income of the trusts nor had any of such income expended for his benefit. He substituted some securities for others in 1918 for the last time. As securities were delivered by the petitioner to the trustees, such items were eliminated from his accounts. He never used the trusts for personal loans or for personal credit in any way. The value of his separate property has at all times greatly exceeded the value of the trust property.
After May 5, 1921, he never exercised any rights of management or control over the trust property.
The corporate trustee was a regular trust company, doing other business. The petitioner was not interested in it financially.
The petitioner, his wife, and their two children were all living and of age during the period 1917 to 1925, inclusive.
The fair market value on July 13, 1925, of the securities constituting the corpus of these two trusts was $13,110,463.44, including $116,548.72 representing accrued interest not received and dividends declared but not received. The respondent agrees to eliminate the latter amount from the amount subject to gift tax.
The respondent has asserted the tax under section 319 of the Revenue Act of 1924, which, as far as material here, provides for the imposition of a tax:
[1183]*1183For the calendar year 1924 and the calendar year 1925 * * * upon the transfer by a resident l>y gift during such calendar year of any property wherever situated, whether made directly or indirectly * * *. [Italics supplied.]
This statute, as applied to gifts made after its enactment, has been held valid in Bromley v. McCaughn, 280 U. S. 124, but invalid as to gifts made prior to June 2, 1924. Untermeyer v. Anderson, 276 U. S. 440.
The question here is whether the value of the corpus of the two trusts may be used as the measure of the gift tax asserted on the ground that the “ transfer * * * by gift ” occurred in 1925 when the settlor relinquished his reserved power to alter, amend, or revoke the trusts which were created in 1917, prior to the enactment of the statute imposing the gift tax. We think it must be conceded that the term “ gift ” as used in the statute merely designates the transfers selected for tax, i. e., only such transfers as are donative in character have been selected. The term designates the character of the transfer rather than the medium used in effecting it. The parties assume that “ transfer by gift ” as used in the statute includes all trusts created after the passage of the Act, and there can be no doubt of this if the statute is not to be completely nullified by so ready a means of evasion. Thus the tax is imposed upon transfers made “ directly or indirectly.” The fact that section 319 is broad enough to include the creation of a trust, donative in character, also finds support in subdivisions (a) (2) and (b) (1) of section 321, which allow certain deductions in computing the amount of the gifts subject to the tax imposed by section 319. Both of these subdivisions mention and allow the deduction of gifts made “ to or for the use of ” various corporations for political or charitable purposes and gifts made “ to a trustee or trustees ” for similar purposes. But counsel for the petitioner suggests that every essential thing was done in 1917 when the trusts were created. The property was then transferred to a corporate trustee and provision was made that all or some part of the income should go to petitioner’s children, merely the right being reserved to alter, amend or revoke the trusts, and it is said that the surrender in 1925 of this reserved right surely can not constitute a transfer within the meaning of the gift tax statute. But this reserved right which was relinquished in 1925 was the absolute right to control the corpus and the income of the two trusts. At a word from petitioner he was reinvested with the full and complete ownership of the corpus and the income and earnings therefrom on and after the date he might take such action. The rights of the children were complete only as far as income paid and accrued prior to the time petitioner exercised his reserved right to alter, amend or revoke the trusts. This reserved power may be, as petitioner says, the mere [1184]*1184right to revoke, but it is the essence of ownership and control.
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opinion.
Arundell:
In 1925 the petitioner relinquished his power of revocation of two trusts established in 1917. This act is held by respondent to constitute a gift within the meaning of the gift-tax provisions of the Revenue Act of 1924, and he has asserted a deficiency in gift tax in the amount of $2,465,681.20.
A lengthy stipulation of facts was filed which is incorporated herein by reference as our findings of fact. A brief summary of the facts will suffice for the purposes of understanding and deciding the case.
The petitioner, at all times material hereto, has resided in New York, N. Y., and thus has been a resident of the United States. On June 28, 1917, he established two trusts in New Jersey; one for the benefit of his only son, Edmund,- and the other for the benefit of his only daughter, Lucile G. Gimbel. An individual and a trust company were the original trustees'. The trusts were to continue for ten years unless sooner terminated. A substantial amount was to be paid annually to the beneficiary of each trust and at the end of the ten-year period the principal of each trust was to be paid to the beneficiary, free of all restrictions.
There were provisions for the children of á beneficiary in case the beneficiary died within the ten-year period, and, in the event of the death of a beneficiary without surviving children, then the petitioner was to receive the principal and accumulations.
[1182]*1182The petitioner retained the right to alter or revoke each trust except as to income received or accrued, and to direct the making of all changes in the securities included in the trust property. Subject to the petitioner’s approval, the trustees were authorized to do all things necessary in connection with the trust property. The trustees were given the custody of the trust funds and all1 securities were listed in their names or in the names of their nominees.
Various changes in the trust agreements were made from time to time. For example, in 1921 the petitioner gave to two individuals the power, formerly reserved to himself, of directing and approving the management of the trusts.
On July 13, 1925, the final change in the trusts was made, whereby the petitioner relinquished his power to alter, modify, or revoke the trusts.
The corporate trustee continued throughout the period, but there were changes in the individual trustees. The petitioner was never a trustee.
The petitioner delivered to the trustees the securities constituting the corpus of the trust on June 28, 1917, and the trustees have held all securities of the trust since that date. The trustees have collected all income and profits of the trust and have distributed a substantial part thereof to the two beneficiaries, as provided by the agreements. The petitioner has never received any income of the trusts nor had any of such income expended for his benefit. He substituted some securities for others in 1918 for the last time. As securities were delivered by the petitioner to the trustees, such items were eliminated from his accounts. He never used the trusts for personal loans or for personal credit in any way. The value of his separate property has at all times greatly exceeded the value of the trust property.
After May 5, 1921, he never exercised any rights of management or control over the trust property.
The corporate trustee was a regular trust company, doing other business. The petitioner was not interested in it financially.
The petitioner, his wife, and their two children were all living and of age during the period 1917 to 1925, inclusive.
The fair market value on July 13, 1925, of the securities constituting the corpus of these two trusts was $13,110,463.44, including $116,548.72 representing accrued interest not received and dividends declared but not received. The respondent agrees to eliminate the latter amount from the amount subject to gift tax.
The respondent has asserted the tax under section 319 of the Revenue Act of 1924, which, as far as material here, provides for the imposition of a tax:
[1183]*1183For the calendar year 1924 and the calendar year 1925 * * * upon the transfer by a resident l>y gift during such calendar year of any property wherever situated, whether made directly or indirectly * * *. [Italics supplied.]
This statute, as applied to gifts made after its enactment, has been held valid in Bromley v. McCaughn, 280 U. S. 124, but invalid as to gifts made prior to June 2, 1924. Untermeyer v. Anderson, 276 U. S. 440.
The question here is whether the value of the corpus of the two trusts may be used as the measure of the gift tax asserted on the ground that the “ transfer * * * by gift ” occurred in 1925 when the settlor relinquished his reserved power to alter, amend, or revoke the trusts which were created in 1917, prior to the enactment of the statute imposing the gift tax. We think it must be conceded that the term “ gift ” as used in the statute merely designates the transfers selected for tax, i. e., only such transfers as are donative in character have been selected. The term designates the character of the transfer rather than the medium used in effecting it. The parties assume that “ transfer by gift ” as used in the statute includes all trusts created after the passage of the Act, and there can be no doubt of this if the statute is not to be completely nullified by so ready a means of evasion. Thus the tax is imposed upon transfers made “ directly or indirectly.” The fact that section 319 is broad enough to include the creation of a trust, donative in character, also finds support in subdivisions (a) (2) and (b) (1) of section 321, which allow certain deductions in computing the amount of the gifts subject to the tax imposed by section 319. Both of these subdivisions mention and allow the deduction of gifts made “ to or for the use of ” various corporations for political or charitable purposes and gifts made “ to a trustee or trustees ” for similar purposes. But counsel for the petitioner suggests that every essential thing was done in 1917 when the trusts were created. The property was then transferred to a corporate trustee and provision was made that all or some part of the income should go to petitioner’s children, merely the right being reserved to alter, amend or revoke the trusts, and it is said that the surrender in 1925 of this reserved right surely can not constitute a transfer within the meaning of the gift tax statute. But this reserved right which was relinquished in 1925 was the absolute right to control the corpus and the income of the two trusts. At a word from petitioner he was reinvested with the full and complete ownership of the corpus and the income and earnings therefrom on and after the date he might take such action. The rights of the children were complete only as far as income paid and accrued prior to the time petitioner exercised his reserved right to alter, amend or revoke the trusts. This reserved power may be, as petitioner says, the mere [1184]*1184right to revoke, but it is the essence of ownership and control. Prior to 1925, when petitioner relinquished the right of revocation, the property, was his, not his children’s, and he alone could have withdrawn every right they had without legal redress on their part. That a gift by a deed of trust, in which the right of revocation is reserved to the grantor, does not become effective until the termination of the right, is held in numerous decided cases. See In re Hanna's Estate, 195 N. Y. S. 749; In re Schmidlapp's Estate, 196 N. Y. S. 108, citing Lines Estate, 155 Pa. 378; 26 Atl. 728; Matter of Bullen, 143 Wis. 512; 128 N. W. 109; Blodgett v. Union & New Haven Trust Co., 97 Conn. 405; 116 Atl. 909; Crocker v. Shaw, 174 Mass. 266; 54 N. E. 549.
This tax, like the estate tax, is on the “ transfer ” of property. In Chase National Bank v. United States, 278 U. S. 327, involving insurance policies, it was held that the transfer was uncompleted until the insured’s right to change the beneficiaries was terminated. The court said: - •
Such an outstanding power residing exclusively in a donor to recall a gift after it is made is a limitation on the gift which made it incomplete as to the donor as well as to the donee, and we think that the termination of such a power at death may also be the appropriate subject of ,a tax upon transfers.
The quoted language is particularly significant when it is recalled, that the Revenue Act of 1921 under which the Chase National Bank case was decided does not in terms purport to tax transfers or trusts in which the donor retains the power of alteration as do the later revenue acts. See section 303 (d),- Revenue Acts of 1924 and 1926. And the same reasoning was applied in Reinecke v. Northern Trust Co., 278 U. S. 339, in holding that the estate tax applied to the revocable trusts involved, the court saying: “a transfer made subject to a power of revocation in the transferor, terminable at his death, is not complete until his death.”
In Means v. United States, 39 Fed. (2d) 748; certiorari denied, 282 U. S. 849, the Court of Claims had facts on all fours with the present case and sustained the imposition of the tax, citing as authority Saltonstall v. Saltonstall, 276 U. S. 260; and Reinecke v. Northern Trust Co. and Chase National Bank v. United States, supra. In its opinion the Court of Claims said that the Supreme Court in the cases relied on determined the precise question of the effective date “ of the transfer of property where the donor in trust instruments had reserved to himself the unrestricted rights of revocation.” The petitioner contends that the Court of Claims misapprehended the scope of the Supreme Court ■ decisions. _ It is argued that the cases cited are not controlling as the Supreme Court was considering them solely from the standpoint of the constitutional power of Congress [1185]*1185to tax as transfers the termination of reserved powers to alter the instruments there involved. It is true that in the cited cases constitutional questions were presented to the court. But in each case the decision turned upon the question of whether the termination of a power after the enactment of the taxing act constituted a transfer within the meaning of the act.
This is distinctly brought out in the Northern Trust Go. case, in which the settlor of two revocable trusts created in 1903 and 1910 died in 1922, while the Revenue Act of 1921 was in effect. At the time this case was under consideration Nichols v. Coolidge, 274 U. S. 531, had already held that the 1918 Act was invalid in so far as it attempted to tax “ transfers completed before any such statute was enacted,” and it was contended that the two trusts came within that rule. But the court held otherwise, on the ground that the reserved power in the settlor alone prevented the transfers from being complete until such power was terminated. The opinion reads in part:
But in No. 77, Chase National Bank v. United States, 278 U. S. 327, 49 S. Ct. 126, 73 L. Ed.-, decided this day, the decision is rested on the ground, earlier suggested with respect to the Fourteenth Amendment in Saltonstall v. Saltonstall, 276 U. S. 260, 48 S. Ct. 226, 72 L. Ed. 565, that a transfer made subject to a power of revocation in the transferor, terminable at his death, is not complete until his death. Hence section 402, as applied to the present transfers, is not retroactive since his death follows the passage of the statute. For that reason, stated more at length in our opinion in Olíase National Bank v. United States, supra, we hold that the tax was rightly imposed on the transfers of the corpus of the two trusts * * *.
In the Chase National Bank case the court' states the question before it in this way:
The precise question presented is whether the termination at death of that power [to change the beneficiary] and the consequent passing to the designated beneficiaries of all the rights under the policies freed of the possibility of its exercise may be the legitimate subject of a transfer tax, as is true of the termination by death of any of the other legal incidents of property through which its use or economic enjoyment may be controlled.
In deciding the question the court held in part:
A power in the decedent to surrender and cancel the policies, to pledge them as security for loans and the power to dispose of them and their proceeds for his own benefit during his life * * * is by no means the least substantial of the legal incidents of ownership, and its termination at his death, so as to free the beneficiaries of the policy from the possibility of its exercise would seem to he no less a transfer within the reach of the taxing power than a transfer effected in other ways through death. [Italics supplied.]
This case is strikingly parallel to the Northern, Trust Co. case in so far as the so-called “ two trusts ” were involved. In that case the decedent had created two trusts, reserving to himself alone the power of revocation, and died in 1922 without having exercised the powers. [1186]*1186The estate-tax statute imposed a tax “ upon the transfer of the net estate ” and provided for the inclusion in the estate of all property “ to the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust * * * intended to take effect in possession or enjoyment at or after his death * * In the instant case the taxpayer created trusts in 1917 wherein he reserved to himself alone the power to alter, amend, or revoke, and terminated that power in 1925 by relinquishing it. The applicable statute here taxes “ the transfer * * * by gift * * * of any property * * * whether made directly or indirectly * * If in the one case the termination of the power of revocation constituted a completed and taxable transfer, it seems to us that it does so in the other. We are accordingly of the opinion that the court of claims correctly construed the statute in the Means case and properly applied the reasoning of the supreme court in the cases cited by it.
The gift-tax act was designed primarily to prevent evasion of the estate-tax act and the surtax provisions of the income-tax laws. In introducing the gift-tax provisions on the floor of the House the then Chairman of the Ways and Means Committee stated [Congressional Record, 68th Cong., 1st sess., vol. 65, part 3, pp. 3119 and 3220] : “ The gift tax is a corollary to the estate tax. It is perfectly idle to attempt to raise the estate tax as we have done today, and make no provision with reference to gifts. The estate tax at the present time is being largely evaded by the splitting up of the large estates * * * .” See also Congressional Record, vol. 65, part 4, pp. 3172, 3173; part 8, p. 8095, and dissenting opinion by Justice Brandéis in Untermeyer v. Anderson, supra.
In view of the purpose for which the statute was enacted, and its language like that of the estate-tax provisions in taxing the “ transfer ” of property, it is our opinion that it should be construed in harmony with the construction placed on the estate-tax statute, and if this is done it follows inevitably that the transfer by means of trusts donative in character is not complete until the power of revocation is terminated.
The construction we place on the statute is the same as that of the respondent in Regulations 67, article 1, reading in part:
The creation of a trust, where the grantor retains the power to revest in himself title to the corpus of the trust, does not constitute a gift subject to tax, but the annual income of the trust which is paid over to the beneficiaries shall be treated as a taxable gift for the year in which so paid. Where the power retained by- the grantor to revest in himself title to the corpus is not exercised a taxable transfer will be treated as taking place in the year in which such power is terminated.
We think it is not without significance that while Congress amended the gift-tax sections of the 1924 Act as to rates by sections [1187]*1187824 and 825 of the Revenue Act of 1926, no change was made in the imposing section which prior thereto had been construed by the respondent as above set out.
In conclusion, it is our opinion that the transfers of property by means of the trusts herein were transfers by gift within the meaning of the statute; that the transfers were not completed until the settlor relinquished his power of revocation in 1925; and that the Means case correctly interpreted the statute and should be followed in this proceeding.
Reviewed by the Board.
Decision will be entered v/nder Rule 50.