Harkness v. United States

469 F.2d 310, 199 Ct. Cl. 721, 30 A.F.T.R.2d (RIA) 5754, 1972 U.S. Ct. Cl. LEXIS 189

Opinions

PeR Curiam:*

In her 1955 federal income tax return, plaintiff included in her gross income $413,379.04 as income received during that year from her husband’s estate. Tn 1961, the District Director of Internal Revenue for the Manhattan District, New York, took the position that, instead of such sum, plaintiff should have included the amount of $630,740.04, i.e., an additional $217,361. The inclusion of such larger amount in plaintiff’s gross income resulted (after the making of various adjustments) in plaintiff’s allegedly owing an additional $188,153.35 in income tax for such year, and the Director at that time assessed plaintiff in such amount, plus interest thereon in the amount of $60,103.40, or a total of $248,256.75. Plaintiff paid the additional tax and interest so assessed, and then filed a timely claim for refund therefor. Having received neither a notice of disal-lowance nor any refund, plaintiff instituted the instant suit to recover such assessed amount, plus interest.

Plaintiff’s husband died on August 12, 1954. By his will, he gave plaintiff one-half of his residuary estate. The remaining half was, after the deduction therefrom of any “legacy, succession, transfer, estate or inheritance taxes payable by [the] estate with respect to any property disposed of by [the] Will or payable by any recipient of any such property,” given, in equal shares, to the trustees of four testamentary trusts for the children of plaintiff and the decedent (i.e., the issue of their or prior marriages). The will provided that such taxes “shall be paid by [the] Executors out of [the] estate as part of the expenses of administration thereof,” with the proviso that “no part of such taxes shall be deducted from or payable out of the one-half (i/2) °f [the] residuary estate” which the decedent bequeathed to plaintiff.

During 1955, and prior to the ultimate distribution of the residuary estate, the executors made distributions to the five beneficiaries thereof in the total sum of $36,004,082.23. Of this amount plaintiff, by eleven payments, received $27,467,768.51. The four trusts, by ten payments to each, received the balance of $8,436,295.75 (in equal shares of approximately $2,134,-000). All the distributions were in the form of cash, stocks and bonds. None of the distributions were required by the will to be made prior to the ultimate distribution of the residuary estate.

The federal fiduciary income tax return filed by the executors on behalf of the estate showed distributable net income ¹ for 1955 in the amount of $1,005,682.94. A deduction of $826,758.68 was shown on the return for distributions of such income to the five residuary estate beneficiaries, the difference of $178,924.26 between such two figures consisting of tax-exempt income (and expenses allocable thereto).

Section 662(a) (2) (B) of the Internal Revenue Code of 1954 (26 U.S.C. § 662(a) (2) (B) (1958)) provides that, where the amounts distributed to all beneficiaries of an estate accumulating income or distributing corpus exceed the distributable net income of the estate, each beneficiary shall include in his gross income an amount which bears the same ratio to distributable net income as the total amount distributed to him bears to the total of the amounts distributed to all the beneficiaries.²

The amount of $27,467,768.51 which plaintiff received in 1955 from the residuary estate equaled 76.2907 percent of the total amount of $36,004,082.23 distributed to all beneficiaries during such taxable year. Since such total amount distributed exceeded the distributable net income, the District Director concluded that the provisions of Section 662(a) (2) (B) were applicable and accordingly applied the same percentage to the taxable distributable net income of the estate, the resulting figure being regarded as the amount which plaintiff should have included in her gross income. Application of such 76.2907 percent to the taxable distributable net income figure of $826,758.68 produces the aforementioned figure of $630,740.04 as the amount the District Director concluded plaintiff was required by the statute to have included in her gross income. The inclusion of such amount in plaintiff’s gross income produced the additional income tax which is the subject of this suit.

Plaintiff contends that, pursuant to accurate accounting by the executors in calculating the amount of the estate corpus and income which they distributed to the five beneficiaries in 1955, she in fact actually received during the year only the taxable amount of $413,379.34, which amount was but one-half of the taxable distributable net income, and not 76.2907 percent thereof, the figure that the statutory formula produces. Such accounting in the administration of the estate was, plaintiff says, in no way tax motivated, but was in accordance with common practices followed at that time by executors in New York in the administration of estates, and was permitted by the terms of the will and applicable local law. Furthermore, she points out, the accounts of the executors for the year 1955, which set forth the income distributions to plaintiff and the four trusts on a basis of one-half to plaintiff and the other half to the trusts, were judicially settled and allowed by the Surrogate Court of New York County, New York.³

Although the approximately $27,500,000 paid to plaintiff during the year greatly exceeded the aggregate amount of approximately $8,500,000 paid to the four trusts, each of such total payments concededly consisting of both corpus and income, plaintiff says that such unequal amounts nevertheless included the equal amounts of $413,379.34 of taxable net income. For this result, plaintiff relies upon the manner in which the executors made their distributions of what they designated as “corpus.” The executors, in accordance with a common New York practice, made simultaneous distributions of “principal” and “income” among all the residuary legatees on a basis proportionate to their respective interests in the residuary estate. Further, since here the will directed that all legacy, succession, transfer, estate, or inheritance taxes (sometimes collectively referred to as “death taxes”) were to be paid as administration expenses of the estate, but with plaintiff’s share of the residuary estate to be undiminished thereby, whenever the executors made any such tax payments (which were, according to their accounting, entirely out of corpus), they also made, again following a common New York practice where wills provided for payment of death taxes out of one or more shares of the residue but not out of one or more other shares, “corpus” distributions to the plaintiff simultaneously with and in the same amounts as such tax payments. Thus, these simultaneous distributions to plaintiff always served, says plaintiff, to keep the remaining corpus interests of the plaintiff and the four trusts in the residuary estate in equal balance, with such equal corpus shares therefore always generating equal amounts of income. The result of adopting these simultaneous distribution practices was the avoidance of complicated calculations of shares of income earned, over varying periods of time, by unequal shares of principal (or by undistributed income). (In this case the decedent’s will specifically provided that the income should be distributed proportionately to the residuary legatees, and that if distribution of the residuary estate was not made simultaneously, “an adjustment of the income shall be made by my Executors.”) To illustrate, when, on January 1,1955, the executors distributed $1,125,000 to each of the trusts — amounts which the executors designated as coming entirely from corpus⁴ — they simultaneously paid plaintiff $4,500,000, also designated as a corpus distribution. And when, on February 8, 1955, they paid $4,310,000 on account of the New York estate tax, they distributed the identical amount (again designated as principal on their accounts) to plaintiff. Similarly, when, on November 14, 1955, they paid $14,621,454.81 on account of the federal estate tax, plus an amount aggregating $3,524,558.49 to the four trusts, such sums totaling $18,146,013.29, they distributed the identical total sum to plaintiff (all amounts again being designated as coming entirely out of principal). In accordance with the will, the New York and federal estate tax payments were deducted from the trusts’ aggregate one-half interest in the residuary estate. The several 1955 distributions to plaintiff and the four trusts which the executors designated as distributions of estate income were so calculated by the executors that the amount of such income distributed to plaintiff on any date equaled the aggregate amount distributed to the trusts on the same date.

It is on tbe above basis that plaintiff argues she actually received only one-half of the distributable net income of the estate in 1955, and not 76 percent.

In a situation such as the instant one. plaintiff contends, Section '662(a) (2) (B) was not intended to be applicable for the formula there prescribed would attribute to plaintiff income which she in fact did not receive. She should not, she argues, have attributed to her more than her actual share of estate income simply because the executors, in their authorized discretion, made principal distributions to her in order to balance the death tax payments and other principal distributions to the trusts. The purpose of the statutory provision here involved was, she contends, to prevent fiduciaries, where the estate had principal, current income, and accumulated income, from controlling tax consequences by manipulating distributions, as, for instance, making distributions designated as coming from “income” to beneficiaries in low income tax brackets, while distributions designated as coming from “principal” are made to beneficiaries in high brackets, and therefore not taxable at all.⁵ There was no intent here on the part of the executors, she argues, to gain any kind of income tax advantage for plaintiff.

These contentions cannot be accepted as justifying recovery. There can be no doubt but that plaintiff’s situation falls squarely within the literal provisions of Section 662(a)(2)(B), and plaintiff is not understood to contend otherwise. The nub of her contention is that the payments here involved should not be treated as being covered by the statute because the executors’ actions were not tax motivated. Even so, the section applies. Clear statutory coverage of this kind, based upon a presumption that any distribution is deemed to be a distribution of the estate’s income to the extent of its income for the year, does not and cannot be made to depend on such intangible factors as the subjective intent of executors.

Section 662(a) (2) (B) was specifically intended, for the purposes of that section, “to avoid the necessity for tracing of income.” ⁶ Such tracing was required by the 1939 Code, which provided that distributions by an estate or trust to its beneficiaries were taxed to the beneficiaries for the taxable year in which they received the distributions only if the distributions were made from the current income of the estate or trust.⁷ As shown, this lent itself to various kinds of manipulations by executors in the labeling of estate moneys as “income” or “principal.” To eliminate such manipulations and tax consequences based upon such estate tax accounting designations of what was “principal” and “income” and from which source a distribution had been made, the “tracing” requirement was, for such distribution purposes, eliminated. Instead, “[t]he beneficiary’s proportionate share of the distributable net income * * * is determined by taking the same fractional part of [the] distributable net income as the * * * amounts * * * distributed to him * * * bear to the total of [the] amounts * * * distributed to all beneficiaries.”⁸ In short, Congress wished to establish an easily useable formula, and to avoid both the necessity of “tracing” and an inquiry into the subjective intention of executors or trustees. As was pointed out in Manufacturers Hanover Trust Co. v. United States, 160 Ct Cl. 582, 596, 312 F. 2d 785, 793, cert. denied, 375 U.S. 880 (1963):

* * * Around this concept of “distributable net income” the Code builds its provisions for (a) the deduction allowed the trust for its current distributions to the beneficiaries, and (b) the distributions which the beneficiaries must include in their own gross incomes. “Thus, distributable net income has been termed the measuring rod or yardstick to be employed in determining, on the one hand, the maximum deduction for distributions which may be allowed to the estate or trust and for gauging, on the other hand, the extent to which beneficiaries may be taxable on the distributions.” 6 Mertens “Law of Federal Income Taxation” § 36.04.

We accept plaintiff’s contention that there were no tax motivations on the part of the executors in making the dis- tribntions at the times and in the amounts they did, and that they made the “balancing” corpus distributions to plaintiff only to avoid complicated calculations of estate income due to the beneficiaries which would result from their having disproportionate interests in the residuary estate.⁹ The fact nevertheless remains that, by making the discretionary “balancing” distributions as they did — required neither by the will nor state law — plaintiff received, under their estate accounting, less of the distributable net income than she probably otherwise would have.¹⁰ There is no showing that — either by not making distributions until the estate was wound up finally, or otherwise — the residuary estate could not have been so managed as to produce the same result as the statutory formula. Thus, in that sense (and not in the sense of tax avoidance), the distributions were “manipulated” so that plaintiff, who received over 75 percent of the 1955 payments, is nevertheless said to have received in that year only 50 percent of the taxable distributable net income. On its face and 'as its purpose is shown by its development and legislative history, the statute was designed to prevent such a result for tax purposes. Indeed, the statutory formula could be considered as providing the more natural and logical result — income earned during the administration of the residuary estate is allocated to the beneficiaries in the same ratio as their interests in the corpus of such estate. Generally, of course, various percentages of corpus will produce like percentages of income. It is thus plain that plaintiff’s situation is, by the unambiguous provisions thereof, covered by the statute¹¹ and although recognizing, of course, the difficulties involved in envisaging every specific situation that could arise under general statutory language, it would nevertheless appear to constitute the type of situation that Congress intended should be covered.¹²

Plaintiff further contends that, even if Section 662(a) is applicable, its formula was erroneously applied because the death taxes should be included in the “amounts properly paid, credited, or required to be distributed to * * * beneficiaries.” Crediting the trusts with such taxes as if they constituted distributions to the trusts would result in plaintiff and the trusts receiving equal total amounts. Accordingly, they would, under the statutory formula, be considered as having received equal amounts of the taxable distributable net income.

Plaintiff’s basis for treating the payment of the death taxes as distributions to the trusts is based upon the provisions of Regulations § 1.662(a)-4 (26 C.F.R.) that “[a]ny amount which, pursuant to the terms of a will * * * is used in full or partial discharge or satisfaction of a legal obligation of any person is included in the gross income of such person under section 662(a) * * * (2) * * * as though directly distributed to him as a beneficiary, * * Since the taxes were not deductible from or payable out of plaintiff’s one-half of the residuary estate, they therefore were, argues plaintiff, a charge upon, or obligation of, the remaining one-half passing to the trusts. As such an obligation, they should, plaintiff says, be considered, under the Regulations, as expenditures made on behalf of the trusts.

This contention too cannot be sustained. The death tax moneys never constituted a part of, nor were they ever incorporated in, the trusts. The will bequeathed one-half of the residuary estate to the trusts “after the deduction therefrom of all of the [death] taxes * * (Emphasis supplied.) There is, therefore, no warrant for adding to the amounts paid to the trusts the amount of the death taxes, an amount which was never paid or payable to the trusts and which the trusts were, under the will, never to receive. Furthermore, these taxes were the legal obligations of the estate, and not of the tru'sts, the will Specifically so recognizing and providing that such taxes, “payable by my estate * * * shall be paid * * * out of my estate as part of the expenses of administration thereof * * The taxes were a “charge” upon, or an “obligation” of, tbe trusts only in the loose sense that, in calculating the net amount of the residuary estate which the trusts were to receive, the amount of the taxes was to fee deducted from the share left to the trusts. They were not a “legal obligation” of the trusts in the sense used by the regulation upon which plaintiff relies.

The trusts received $8,536,313.72 from the estate in 1955. It is such amount that is properly to be considered as the amount “properly paid, credited, or required to be distributed to” them under the statute. The $18,931,454.81 in death taxes paid during the year by the executors, described by the will as part of the administration expenses of the estate, were not “amounts properly paid, credited, or required to be distributed to * * * beneficiaries” within the meaning of the statute or the regulation.

Finally, plaintiff contends that if Section 862 (a), properly construed, does cover the instant situation, it is unconstitutional as applied to her because it would impose an unappor-tioned direct tax on principal or capital in violation of Article I of the Constitution. Section 2, clause 3 of the Article provides that direct taxes shall be apportioned among the several states according to their respective numbers, and section 9, clause 4 provides that no direct tax shall be laid unless in proportion to the census or enumeration directed by the Constitution to be taken. Plaintiff relies on the cases of Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895), Eisner v. Macomber, 252 U.S. 189 (1920), and Taft v. Bowers, 278 U.S. 470 (1929), among others, for the proposition that a tax on principal or capital is a direct tax which must be apportioned among the states in proportion to the census.

Although Section 662(a) (2) (B) purports to be an income tax, nevertheless, plaintiff contends, the section, as here applied, actually imposes a tax on the principal or capital distributions received by plaintiff from the estate of her deceased husband. The Sixteenth Amendment, plaintiff points out, empowers only the levying of taxes “on incomes * * * without apportionment among the several States, and without regard to any census or enumeration.” (Emphasis supplied.)¹³

Additionally, plaintiff argues that Section 662(a) (2) (B) deprives her of property without due process of law because, although she actually received only 50 percent of the taxable income which the estate distributed to the beneficiaries in 1955, she has been taxed on an additional 26.2907 percent of such income. That part of the income, she says, was in fact received by the trusts and not by her, and to attempt to measure her tax by reference to the income of others, i.e., the four trusts, would, she argues, conflict with the due process clause of the Fifth Amendment.¹⁴

'In upholding constitutionality, defendant urges the broad proposition that, even though the disputed amount ($217,361) which taxpayer received in 1955 may have constituted corpus, still the challenged sections ('as applied here) are valid on two alternative grounds, first, that the receipt of a bequest, devise or inheritance (whether or not it be from corpus) properly falls within the Sixteenth Amendment as “income” to the recipient, and, second, that in any event the sections impose an indirect tax upon the receipt of property which under the Constitution need not be apportioned. On either of these views, plaintiff’s invocation of the Fifth Amendment would also fail because the taxpayer would clearly not be taxed on the income or property of others.

We do not have to delve into the difficult issues of large scope which the Government presents because, as we see it, there is a much narrower ground upon which to sustain the statute as applied to plaintiff’s case. That more limited approach stresses the factor (which plaintiff underplays) that the executors did have a choice 'in 1955 whether to make the distributions in the form they did or, instead, so to manage distributions, to the extent governed by Section 662(a), that the several beneficiaries would not be taxable under Section 662(a) on more than their share of the estate’s income. Plaintiff has failed to show that this could not be done.¹⁴a There was no legal compulsion, in the will or in New York law, to make the “balancing” distributions of corpus and income which were made. That course was selected because the other would have been much more burdensome, requiring over the years complicated calculations of shares of income, earned either by principal or by undistributed income, which were due to the various residuary legatees. But the choice was not a forced one, and the other route could have been picked (though at the cost of more work and trouble) .¹⁵ If the application of Section 662(a) (2) (B) was deemed unfair to plaintiff taxwise, when such “balancing” distributions were made, the presumed inequity could be avoided by not making “balancing distributions but employing the other methods of distribution which were available.

That these other methods would have occasioned more trouble (and possibly some more expense) does not invalidate the statutory formula. As we have already indicated, Congress could properly assume, as it did, that in the generality of instances the formula would correspond to reality and not be unfair to any beneficiary. At least where an option is open to avoid an unfair and unrealistic result, use of the formula is not prohibited in the minority of instances in which it may be thought harsh or inequitable. In view of the broad Congressional power in taxation (cf. Fernandez v. Wiener, 326 U.S. 340, 351-53 (1945); A. Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934)), Congress is not required by the Constitution to assure that the way of the option be just as easy as the way of the formula; added work and some added expense, if the option is selected, are permissible accompaniments of that choice. Taxation is not a field in which Congress must use a watchmaker’s refinement and instruments, or a jeweler’s balance, to achieve precise equality in treatment.

The use of formulas which can be avoided if the taxpayer considers them unfair or not to reflect reality in his particular case is, of course, no stranger to the federal income tax system. The best-known is the standard formula for deductions on the individual income tax form; if the standard deduction is thought to be unfair or inadequate, the deductions can be itemized — sometimes at the cost of considerable extra work and some expense. Although the parallel is not exact (particularly since the standard deduction involves deductions, not income), the option available in plaintiff’s case is roughly comparable to this common choice open each year to millions of individual taxpayers. We cite this example to show that formula solutions are not uncommon, and are invulnerable to attack where an escape-hatch is available if the formula proves unjust in a particular instance.

It may be said that Mrs. Harkness, the taxpayer, did not have or make the choice here — the executors did. Technically that is the situation, but there is no hint that plaintiff objected in any way to the estate’s course of 'action, or suggested the other course, or was compelled to accept the large distributions of principal in 1955. It is unrealistic to suppose that, if she had objected on the ground that the estate’s mode of distribution increased her own taxes, the executors would nevertheless have forced her to accept those large payments. Indeed, there is no reason to believe that under the will the executors could lawfully compel 'her to accept the large corpus distributions in 1955, if she was unwilling to do so because of the tax consequences to her.¹⁶ Plaintiff’s reply brief to the court makes it clear that plaintiff was not so compelled, ■and suggests that a 'deliberate chance was taken as to how the law would be applied. The brief indicates that the executors (and probably plaintiff’s own counsel) 'believed that § 662(a) (2) (B) should not be interpreted (in this type of case) as the Internal Revenue Service ¡and we have construed it — and they acted accordingly.¹⁷

Without intimating in any way that the statute would be invalid if applied where there was no such option as in this case, we hold that the existence of the choice removes whatever defect there might otherwise be. At least where the option is present, Congress can reasonably and validly forbid “tracing” and presume that its formula in § 662(a) (2) (B) gives an accurate reflection of the division of the estate’s “distributable net income” among the beneficiaries. Cf. Smith v. Westover, 191 F. 2d 1003 (9th Cir. 1951), aff'g 89 F. Supp. 432 (S.D. Cal. 1950). 'Normally, use of the formula would be fair 'and accurate enough. If discretionary “balancing” payments which include large amounts of corpus are made and accepted, as here, the necessary consequence is to invoke the formula nonetheless, and the taxpayer will not be allowed to “trace” in order to show that the source of part of his receipts was in fact not “distributable net income” but corpus. If the tax consequences of this approach are deemed sufficiently undesirable, there is the other route which can and should be taken. In these circumstances, there is no compulsion to accept an unfair or unrealistic division of “distributable net income.”

For these reasons, we hold that the tax was lawfully imposed and that plaintiff is not entitled to recover.

Footnotes

*

This opinion incorporates the opinion of Trial Commissioner Saul Richard Gamer (now Chief Commissioner), with modifications and additions made in the light of the presentation by the parties to the judges which, in the case of the Government, differed in substantial part from the presentation to the Trial Commissioner.

1

Section 643 of Part X, “Estates, Trusts and Beneficiaries,” of Subchapter J, “Estates, Trusts, Beneficiaries, and Decedents” of the Internal Revenue Code of 1954 (26 U.S.C. § 643 (1958)) defines the term “distributable net income” as “the taxable income of the estate or trust” with certain modifications set forth therein.

2

Section 662 provides as follows :

§ 662. INCLUSION OF AMOUNTS IN OROSS INCOME OF BENEFICIARIES OF ESTATES ANB TRUSTS ACCUMULATING! INCOME OR DISTRIBUTING CORPUS.

(a) Inclusion.

Subject to subsection (b), there shall be included in the gross income of a beneficiary to whom an amount specified in section 661(a) is paid, credited, or required to be distributed (by an estate or trust described in section 661), the sum of the following amounts:

(1) Amounts required to be distributed currently.

The amount of income for the taxable year required to be distributed currently to such beneficiary, whether distributed or not. If the amount of income required to be distributed currently to all beneficiaries exceeds the distributable net income (computed without the deduction allowed by section 642(c), relating to deduction for charitable, etc., purposes) of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (as so computed) as the amount of income required to be distributed currently to such beneficiary bears to the amount required to be distributed currently to all beneficiaries. For purposes of this section, the phrase “the amount of income for tiie taxable year required to be distributed currently” includes any amount required to be paid out of Income or corpus to tie extent such amount is paid out of income for such taxable year.

(2) Other amounts distributed.

All other amounts properly paid, credited, or required to be distributed to such beneficiary for the taxable year. If the sum of—

(A) the amount of income for the taxable year required to be distributed currently to all beneficiaries, and

(B) all other amounts properly paid, credited, or required to be distributed to all beneficiaries exceeds the distributable net income of the estate or trust, then, in lieu of the amount provided in the preceding sentence, there shall be included in the gross income of the beneficiary an amount which bears the same ratio to distributable net income (reduced by the amounts specified in (A)) as the other amounts properly paid, credited or required to be distributed to the beneficiary bear to the other amounts properly paid, credited, or required to be distributed to all beneficiaries.

3

Three of the four children were minors and a special guardian appointed by the court to represent them reported that, insofar as their interests were concerned, the executors’ accounts were correct.

4

As of that date, the executors’ accounts showed $1,155.42 of undistributed 1954 estate Income.

5

Under 26 U.S.C. § 102 (1970), the value of property acquired by bequest is not taxable Income to the distributee. However, income from bequeathed property, as well as a gift composed of income from property, must he included in the legatee’s gross income. The section goes on to provide, however, in subsection (b), that amounts included in the gross income of a beneficiary under Subehapter J, pertaining to “Estates, Trusts, Beneficiaries, and Decedents,” and which contains Section 662, shall be treated as a bequest of income from property. Section 663(a)(1) of Subchapter J excludes from amounts falling within Section 662(a) any amount which, under the terms of the governing instrument, is paid as a gift or bequest of a specific sum of money or of specific property, provided it is paid all at once or in not more than three installments. It further provides, however, that “an amount which can be paid * * * only from the income of the estate shall not be considered as a gift or bequest of a specific sum of money.”

6

H.R. Rep. No. 1337, 83d Cong., 2d Sess. A199, 3 U.S.C. Cong. & Adm. News 4017, 4339 (1954) ; S. Rep. No. 1622, 83d Cong., 2d Sess. 349, 3 U.S.C. Cong. & Adm. News 4621, 4990 (1954).

7

Por Instance, under Section 162(d) of the 1939 Code, as amended, a distribution, in the first 65 days of a taxable year, of income of the preceding taxable year, was treated as having been made in such preceding year. In addition, if there also was current year income, tracing was necessary to determine which year’s income had been distributed. And, in addition to the current-accumulated interest problem, tracing would, of course, be required to determine whether the distribution contained corpus. 26 U.S.C. § 162(d) (1946).

8

3 U.S.C. Cong. & Adm. News, supra n. 6, at 4340, 4990. The portions of the House and Senate Reports here involved are identical. Id., at 4339-40, 4989-90. In pertinent part, they stated:

Subsection (a) provides that the beneficiary of an estate or trust * * * must include in gross income any amounts paid, credited, or required to be distributed to him for the taxable year of the estate or trust; however, the amount so includible may not exceed the beneficiary’s proportionate share of the distributable net income. The effect of limiting the taxation of a beneficiary to his proportionate share of the distributable net income is to preserve the conduit principle by providing that all distributions * * * from an estate or trust will be taxable but not to an extent in excess of the taxable income of the estate or trust * * *. It is thus possible largely to avoid the necessity of tracing income which exists generally under existing law. Instead of determining whether a particular distribution represents amounts of current or accumulated trust income, this revision, broadly speaking, provides that any distribution is considered a distribution of the trust or estate’s current income to the extent of its taxable income for the year. This principle is similar to the determination of whether a dividend has been distributed, i.e., that every distribution made by a corporation is deemed to be out of earnings and profits to the extent thereof and from the most recently accumulated earnings and profits.

*******

If the estate or trust pays * * * to beneficiaries amounts other than income which is required to be distributed currently, paragraph (2) provides that these other amounts * * * are includible in the gross income of the recipient beneficiaries but only to the extent of each beneficiary’s proportionate share of the distributable net income * * *. * * * The beneficiary’s proportionate share of the distributable net income * * * is determined by taking the same fractional part of such distributable net income ⁴ * * as the other amounts paid * * * bear to the total of other amounts paid * * * to all beneficiaries. * * *

9

Such as would occur after the death taxes were paid and deducted from tRe shares of the trusts, thereby diminishing the interests of the trusts in the residuary estate from the dates of such payments, with proportionate diminutions in the income which would be produced after such dates from such diminished shares.

10

Defendant, apparently attempting to minimize the complications were the balancing distributions not made, cites In Re Shubert’a Will 10 N.Y. 2d 461, 180 N.E. 2d 410, 225 N.Y.S. 2d 13 (1962), which it construes as holding that, under Section 17-b of Personal Property Law, N.Y. Consol. Laws Ann. (McKinney 1962), as it existed at the time of the administration of the estate herein, the shares of income to be received by the four trusts would not have been reduced as a result of the payment of the death taxes. It seems clear that defendant errs. In that case, the statute provided that “unless otherwise expressly provided by the will of a person dying after this act taires effect, all income from real and personal property earned during the period of administration of the estate of such testator and not payable to others or otherwise disposed of by the will shall be distributed pro rata as income among the beneficiaries of any trusts created out of the residuary estate of such testator and the other persons entitled to such residuary estate." The court held that where, in accordance with the direction of the testator, payment of the death taxes was made out of the residuary estate, the net income earned by the estate during administration was to be divided pro rata among the income beneficiaries in proportion to the division of the residuary estate set up in the will before consideration of the effect of the tax payments. However, the court specifically pointed out that the will did not provide for the payment of the taxes prior to distributions to the beneficiaries or that the taxes were to be treated as administration expenses to be subtracted initially. Thus there was no provision in the will “otherwise expressly” providing differently from the Section 17-b formula. The court held that a general direction that death taxes be paid out of the residuary estate was not equivalent to a direction that the taxes be treated as administration expenses.

In the instant case, however, the will expressly provided (1) that an adjustment of the income should be made in the event simultaneous distribution of the residuary estate was not made to the beneficiaries, and (2) that the trusts’ one-half share was to be calculated “after the deduction therefrom of” the death taxes, with the taxes to be considered as part of the estate’s administration expenses.

11

In their fiduciary income tax return for 1955, in which they took a deduction of $826,758.68 for distributions to the five estate beneficiaries, the executors attached an explanatory statement setting forth the “allocations of shares of income and credits” to such beneficiaries which “may result” from the “Mpplieation of the formula for determining inclusions in gross income of beneficiaries prescribed in Section 662(b) of the Internal Revenue Code, if proper in this case * *

12

It is felt by some that the present Section 662(a) provisions lead to inequitable results in certain situations, and proposals have been made which would reinstitute, at least to a limited extent, the prior “tracing” concepts and practices. See, Final Report of the Advisory Grotip on Subchapter J of the Internal Revenue Oode of 1954, dated December 30, 1958, in Searings on Advisory Group Recommendations on Subchapters O, J and K of the Internal Revenue Oode before the Souse Committee on Waps and Means, 86th Cong., 1st Sess. 257, 286-92. Among the proposals of the Advisory Group was the exclusion from Section 662(a) of amounts properly paid, during the first three years of the estate, out of the corpus of the estate in full or partial satisfaction of a bequest. Effect would be given to a fiduciary’s identification of the source of a distribution, as was permitted under the 1939 Code. During the hearings held in the course of consideration of proposed amendatory legislation, various examples were cited of alleged inequities under the 1954 Code .provisions, including one which, on the facts, was substantially identical with the instant case. 3 Searings on Topics Pertaining to the General Revision of the Internal Revenue Oode Before the Souse Committee on Ways and Means, 85th Cong., 2d Sess. 2801-2802. (The same factual situation is also discussed in Fillman, Selections From Subchapter J, 10 Tax Daw Rev. 453, 47,1 (1955).) However, no such legislation has been enacted.

13

In addition to Section 662(a) (2) (B), plaintiff also attacks, for the same reasons, the constitutionality of that part of Section 102(b) which provides that any amount included in the gross Income of a beneficiary under Subchapter J shall be treated as a gift, bequest, or inheritance of income from property, such gifts, bequests, or inheritances being, as hereinabove set forth, excluded from the provision of Section 102(a) that “Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.’’ See n. 5.

14

In support, plaintiff cites Hoeper v. Tax Commission, 284 U.S. 206 (1931), and Lewis v. White, 56 F. 2d 390 (D. Mass.), appeal dismissed, 61 F. 2d 1046 (1st Cir. 1932).

14

a At the oral argument plaintiff’s counsel admitted that this could be done, albeit with substantial trouble, under the will and the law.

15

It is absolutely plain on this record that the executors deliberately chose to make the distributions in the form they did, and that they were under no compulsion of law. Taxpayer so concedes. See also infra.

16

Article ELEVENTH oi the will would not seem, to contemplate such a forced distribution of principal.

17

Tile 1954 Internal Revenue Code, which first contained § 662(a) (2) (B), became law on August 16, 1954, and the first full calendar year of Its effectiveness was 1955, the year Involved here.

4

This would be similar to the practice in tax cases of allowing a taxpayer to overcome the presumption of correctness of a determination by the Commissioner of Internal Revenue Service with reference to income taxes.