OPINION.
Disney, Judge:
As seen from the facts above set forth, the Commissioner based the determination of deficiency upon section 22 (a) of the Internal Revenue Code and the powers of the petitioner under the trust instrument to control and manage the trust property and his retention of the substance of ownership of the principal, “due to the provision * * * that delivery of the proxies to vote the stock was to be made, only to your wife or to you, during the lifetime of each of you, and also that no stock * * * could be sold without the consent in writing of your wife or yourself”; and on brief the respondent urges that petitioner retained economic control of his contribution to the trust fund. Reliance is placed primarily upon the principles enunciated in Helvering v. Clifford, 309 U. S. 331, with citation of Stockstrom v. Commissioner, 148 Fed. (2d) 491. John Stuart, 2 T. C. 1103, is quoted. The petitioner argues, in short, that the trusts contain none of the elements deemed pertinent in the Clifford case or those following it.
In Helvering v. Clifford, supra, the Court said that “the benefits directly or indirectly retained blend so imperceptibly with the normal concepts of full ownership” that the husband was properly found to be owner of the corpus. Since other cases likewise have indicated that taxation of trust income to a trustor depends upon retention of such control as approximates the substance of ownership, we scrutinize the facts in this case for such similarity to ownership. Since the Stockstrom case discloses that the grantor “lodged in himself as trustee a dominion over the trust property far in excess of the normal fiduciary powers under traditional chancery concepts,” and had in addition to numerous and broad named powers, the power to deal with the property in any way as his own, it seems apparent that there is sharp contrast with the rights retained by the trustor in the instant case, and that that case offers little assistance here. The John Stuart case merely refers to Helvering v. Stuart, 317 U. S. 154, as suggesting that control of stock of a company of which the grantors were executors might be an essential element in trust control, a fact found lacking in the John Stuart case.
Analyzing, then, the situation here at hand, we find, not the broad and detailed reservations to the settlor of both particular arid general controls over trust corpus or income which were provided by the instruments in many cases considered, but only the following: (a) That the Ward Wheelock stock placed in trust could not, during the life of petitioner or his wife, be sold without the consent of either her or the settlor; and (b) that during her life she could designate who should vote the Ward Wheelock stock placed in trust, while after her death he should hold proxy so to vote the stock. It is to be noted that only after the death of his wife is the petitioner in fact given any power at all. Until her death she alone, and without his consent, could furnish the necessary consent for sale of stock, and she alone could designate who should vote stock. His wife was alive during the taxable years. Again, we observe that consent to sale of the stock, whether given by the wife or by petitioner, did not compel or control sale. In the decision of that question the other trustee would participate. Perry on Trusts, 7th Ed., § 411. In other words, the most that petitioner pould do would be to consent to sale. He could not require sale even after his wife’s death, and could not prevent it if his wife consented and the other trustee joined her in the desire to sell. When we see that prior to her death, and in the taxable years, he had no right to a proxy to vote the shares, the absence of those powers which elsewhere have caused taxation becomes conspicuous. We need not consider a situation which may possibly arise in other years in the contingency that his wife predeceases him, and he then has such power under the trust instrument. During the years here considered, the petitioner had, under the trust instrument, no power at all, no control at all, over either corpus or income. The respondent suggests that, with respect to the consent to sale, “The intent here is not clear,” that “or” in the disjunctive is often interpreted as conjunctive, and that the more logical assumption is that petitioner’s consent was also necessary. No room for such interpretation is left, for the language is clear: “consent in writing either of said MaRgot TREVOR Wheelock or of the Settlor.” (Italics ours.) “Either * * * or” can not be construed as conjunctive.
We consider it plain, therefore, that, so far as trust provisions are concerned, petitioner not only did not retain, during these taxable years at least, that aggregate of powers so imperceptibly blending into the full concept of ownership as to preclude distinction from ownership, but that he retained in the trust instrument no powers or rights at all. There is not even one of the necessary “bundle of rights” frequently found, and found “substantial” in the Clifford case, when we consider rights or power to control as retained by the trust instrument. In this connection, we remember that it is well settled that the terms of a trust instrument, and not the activities actually carried on under it, determine whether there is association taxable as a corporation. Morrissey v. Commissioner, 296 U. S. 344 (361); Helvering v. Coleman-Gilbert Associates, 296 U. S. 369. Though not suggesting that the statement is equally true here, we feel that these authorities do indicate that much weight should be given the trust provisions. We consider also the circumstances involved in the creation and operation of the trust. That the respondent relies upon such circumstances, rather than the terms of the trust itself, is shown in the argument that the petitioner was able to retain control over the stock “by virtue of the privilege, rightfully expected, that he would be designated to vote the stock of the Ward Wheelock Company during his wife’s lifetime, and thereafter to vote the same in his own right * * *. Reference is also made to the petitioner’s “undoubted assurance that he would be designated to vote the stock.”
In substance, the view is that the fact that petitioner’s wife was a trustee enabled him to exercise the control over the trust which has often elsewhere been treated as requiring taxation. That is to neglect, in our opinion, the essential concept involved in the words dominion, control, power, and rights, so often used on this question, and necessarily used in describing ownership. That concept is in essence inconsistent with the permission which the petitioner required from his wife before he could, in her lifetime, vote the stock (and since his consent was not required for sale of the stock so long as she lived, including the years here involved, and no other element can anywhere be found or is relied on, we see his position as completely dependent on his wife’s permission).
We do not think that either in logic or in law we may base what amounts in tax law to ownership alone upon mere “rightful expectations” or “undoubted assurance” on the part of the husband as to what his wife would do.
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OPINION.
Disney, Judge:
As seen from the facts above set forth, the Commissioner based the determination of deficiency upon section 22 (a) of the Internal Revenue Code and the powers of the petitioner under the trust instrument to control and manage the trust property and his retention of the substance of ownership of the principal, “due to the provision * * * that delivery of the proxies to vote the stock was to be made, only to your wife or to you, during the lifetime of each of you, and also that no stock * * * could be sold without the consent in writing of your wife or yourself”; and on brief the respondent urges that petitioner retained economic control of his contribution to the trust fund. Reliance is placed primarily upon the principles enunciated in Helvering v. Clifford, 309 U. S. 331, with citation of Stockstrom v. Commissioner, 148 Fed. (2d) 491. John Stuart, 2 T. C. 1103, is quoted. The petitioner argues, in short, that the trusts contain none of the elements deemed pertinent in the Clifford case or those following it.
In Helvering v. Clifford, supra, the Court said that “the benefits directly or indirectly retained blend so imperceptibly with the normal concepts of full ownership” that the husband was properly found to be owner of the corpus. Since other cases likewise have indicated that taxation of trust income to a trustor depends upon retention of such control as approximates the substance of ownership, we scrutinize the facts in this case for such similarity to ownership. Since the Stockstrom case discloses that the grantor “lodged in himself as trustee a dominion over the trust property far in excess of the normal fiduciary powers under traditional chancery concepts,” and had in addition to numerous and broad named powers, the power to deal with the property in any way as his own, it seems apparent that there is sharp contrast with the rights retained by the trustor in the instant case, and that that case offers little assistance here. The John Stuart case merely refers to Helvering v. Stuart, 317 U. S. 154, as suggesting that control of stock of a company of which the grantors were executors might be an essential element in trust control, a fact found lacking in the John Stuart case.
Analyzing, then, the situation here at hand, we find, not the broad and detailed reservations to the settlor of both particular arid general controls over trust corpus or income which were provided by the instruments in many cases considered, but only the following: (a) That the Ward Wheelock stock placed in trust could not, during the life of petitioner or his wife, be sold without the consent of either her or the settlor; and (b) that during her life she could designate who should vote the Ward Wheelock stock placed in trust, while after her death he should hold proxy so to vote the stock. It is to be noted that only after the death of his wife is the petitioner in fact given any power at all. Until her death she alone, and without his consent, could furnish the necessary consent for sale of stock, and she alone could designate who should vote stock. His wife was alive during the taxable years. Again, we observe that consent to sale of the stock, whether given by the wife or by petitioner, did not compel or control sale. In the decision of that question the other trustee would participate. Perry on Trusts, 7th Ed., § 411. In other words, the most that petitioner pould do would be to consent to sale. He could not require sale even after his wife’s death, and could not prevent it if his wife consented and the other trustee joined her in the desire to sell. When we see that prior to her death, and in the taxable years, he had no right to a proxy to vote the shares, the absence of those powers which elsewhere have caused taxation becomes conspicuous. We need not consider a situation which may possibly arise in other years in the contingency that his wife predeceases him, and he then has such power under the trust instrument. During the years here considered, the petitioner had, under the trust instrument, no power at all, no control at all, over either corpus or income. The respondent suggests that, with respect to the consent to sale, “The intent here is not clear,” that “or” in the disjunctive is often interpreted as conjunctive, and that the more logical assumption is that petitioner’s consent was also necessary. No room for such interpretation is left, for the language is clear: “consent in writing either of said MaRgot TREVOR Wheelock or of the Settlor.” (Italics ours.) “Either * * * or” can not be construed as conjunctive.
We consider it plain, therefore, that, so far as trust provisions are concerned, petitioner not only did not retain, during these taxable years at least, that aggregate of powers so imperceptibly blending into the full concept of ownership as to preclude distinction from ownership, but that he retained in the trust instrument no powers or rights at all. There is not even one of the necessary “bundle of rights” frequently found, and found “substantial” in the Clifford case, when we consider rights or power to control as retained by the trust instrument. In this connection, we remember that it is well settled that the terms of a trust instrument, and not the activities actually carried on under it, determine whether there is association taxable as a corporation. Morrissey v. Commissioner, 296 U. S. 344 (361); Helvering v. Coleman-Gilbert Associates, 296 U. S. 369. Though not suggesting that the statement is equally true here, we feel that these authorities do indicate that much weight should be given the trust provisions. We consider also the circumstances involved in the creation and operation of the trust. That the respondent relies upon such circumstances, rather than the terms of the trust itself, is shown in the argument that the petitioner was able to retain control over the stock “by virtue of the privilege, rightfully expected, that he would be designated to vote the stock of the Ward Wheelock Company during his wife’s lifetime, and thereafter to vote the same in his own right * * *. Reference is also made to the petitioner’s “undoubted assurance that he would be designated to vote the stock.”
In substance, the view is that the fact that petitioner’s wife was a trustee enabled him to exercise the control over the trust which has often elsewhere been treated as requiring taxation. That is to neglect, in our opinion, the essential concept involved in the words dominion, control, power, and rights, so often used on this question, and necessarily used in describing ownership. That concept is in essence inconsistent with the permission which the petitioner required from his wife before he could, in her lifetime, vote the stock (and since his consent was not required for sale of the stock so long as she lived, including the years here involved, and no other element can anywhere be found or is relied on, we see his position as completely dependent on his wife’s permission).
We do not think that either in logic or in law we may base what amounts in tax law to ownership alone upon mere “rightful expectations” or “undoubted assurance” on the part of the husband as to what his wife would do. The history of divorce courts and the modern tendency toward recognition of separate legal rights in wives oppose such an approach. The wife had at all times after the trust was formed on December 1,1938, more stock in the corporation than did the petitioner, and her interest in the welfare of her children, the beneficiaries, may not be said to be less than his. She might very conceivably have concluded that he was not properly managing the corporate business and have refused to cooperate toward his management. To the possibility of exercise of such power by his wife, the petitioner has clearly subjected himself.
Moreover, the respondent’s theory, in effect that the wife is subservient to the husband, is not sufficient to dispose of the presence of Girard Trust Co. as cotrustee with the wife. The wife alone could not control the trust corpus or income; therefore, even complete sub-serviency on her part to her husband still left the cotrustee free from any such influence by the settlor, and left the settlor without those powers which in numerous cases have been considered so necessary to his control that they have been minutely detailed and carefully retained. Without such power over both trustees, the petitioner is seen to lack the control over the trust which is necessary to his taxation.
The argument is made that the advertising business was largely personal, dependent on the petitioner. (The business seems to have survived two years absence of the petitioner in the Army. Moreover, when it was started, at least, it appears to have depended on Armstrong, an advertising consultant and advisor, to the extent that $8,000 assets of his company were purchased and he was employed at the rate of $28,000 a year, for at least one and one-half years.) This appears to mean that the corporate advertising business depends so completely upon the personal efforts and personality of the petitioner that he controls the trust income because he could by his management of the corporation decrease its income and therefore that of the trust, e. g., if he were not given power to vote the stock, he could, at will, shut off trust income by causing the corporation to earn less. Such argument appears to us to assume that the petitioner, unless he is given command over the trust stock in the corporation to an extent no less than the equivalent of ownership itself, would sacrifice the financial interests of himself, his wife, and the children for whose support he is liable, and that no less power will be satisfactory or sufficient to prevent intentional sabotage by him of the business. Though discerning that he does in such respect hold to some extent a rod over the situation, we think it would be unrealistic to hold that it should be given the tax effect contended for by the respondent, for we would not be warranted in a conclusion that action so drastic and so against self-interest as intentional lessening of corporate activity or effect would be caused merely by petitioner’s inability to exercise to practically the fullest extent the control usual to an owner. Taxation should be upon a base more stable than speculation as to what the petitioner might do, and assumption of his ability to “make or break” the business. A high salaried executive employed through exercise of the voting rights by the wife could conceivably produce business results equally as good as those produced by the husband.
The personal business argument, in any case, does not conceal the fact that the petitioner has surrendered not merely some, but almost, if not quite, all of his rights and powers which mean control and go to constitute ownership. Those powers have passed to the wife and the other trustee, and petitioner may not recall them. He retained a hope, apparently with reason, that she would cooperate with him. But such a hope, or expectancy, is not ownership. Moreover, even given the proxy to vote all trust stock, the petitioner is seen still to lack control of the trust income; for, under such cases as Phipps v. Commissioner, 137 Fed. (2d) 141, and W. C. Cartinhour, 3 T. C. 482 (489), and others to the same general intent, the trustees for their beneficiaries would have effective appeal to a court of equity to prevent inequitable treatment of their interests, e. g., refusal arbitrarily to pay any dividends on their stock, however great the corporate earnings.
No case has been cited in which a trustor retaining so little of his former status has been taxed on the theory here presented. In none is mere relationship between husband and wife given the effect asked here, without elements of fact and trust instrument not to be found here. In Frederick B. Rentschler, 1 T. C. 814, the grantor’s interest in the corporation the stock of which was placed in trust was only one of various circumstances contributing to the result, and lacking here.
In Estate of William F. Hofford, 4 T. C. 790, we reconsidered our opinion at 4 T. C. 542. The facts were that the sole owner of stock of a corporation and the sole manager thereof transferred all of such stock to six irrevocable trusts, one for his wife, one for his daughter, and one for each of his daughter’s four children. A contract was entered into by which he was to remain sole manager of the corporation for life at a fixed salary, regardless of physical condition or ability to serve. No voting rights were reserved by the settlor, the trustees having all voting rights. The corporate stock could not be sold or otherwise disposed of without the settlor’s consent (and after his death the consent of another). The petitioner argued that such provision did not represent a reservation of any interest in the stock, but merely a discretion to be exercised in good faith and solely for the benefit of the beneficiaries by the persons considered by the settlor as best qualified to determine the advisability of any sale of stock. For the reasons urged we reconsidered the case; and we held that the settlor did not retain possession or enjoyment of the income from the property, under section 811 (c) of the Internal Revenue Code. Clearly, we think, the cited case contains far more elements of reservation of control over income than the instant case; and, though involving a different statute, the underlying principles here involved do not differ. The case presents flatly the feature of personal control over the corporation. If there, with specific reservation of management, and stock sale control, for life, there was no retention under section 811 (c), there is none here, where neither is reserved. One of the trusts there was for the wife, as in this case. See also Lillian M. Newman, 1 T. C. 921; Alex McCutchin, 4 T. C. 1242. We do not think the personal element idea should be extended to the length desired by the Commissioner. We conclude and hold that the petitioner is not taxable upon the income of the trust. Because of other minor issues,
Decision will be entered wider Rule BO.
Reviewed by the Court.
Murdock, J., concurs only in the result.