Commissioner of Internal Revenue v. Colorado Nat. Bank , 95 F.2d 160 ( 1938 )

LEWIS, Circuit Judge

(dissenting).

The Commissioner claims the trust was set up by Mr. Hendrie in contemplation of death. within the meaning of section 302(c) of the Revenue Act of 1926, 44 Stat. 70, 26 U.S.C.A. § 411(c). That is the issue. I disagree with the majority. To me it seems clear from the uncontradicted testimony that Mr. Hendrie’s gift to his daughter and.her children was not made in contemplation of death but in order that he might speculate upon the stock market for the remainder of his life more actively than he had in the past without fear that the part of his fortune thus given might be lost. He manifested no other intent and purpose in that respect. He did speculate on the stock market during the last five or six years of his life on a considerable scale. Future business activities were contemplated, not death. In my opinion the decision of the Board of Tax Appeals is amply supported by the evidence.