DocketNumber： Docket No. 29685.
Citation Numbers： 24 B.T.A. 52, 1931 BTA LEXIS 1706
Judges： Teammell
Filed Date： 9/17/1931
Status： Precedential
Modified Date： 1/12/2023
*1706
*52 This is a proceeding for the redetermination of a deficiency in income tax for 1923 in the amount of $5,723.44. The petitioner alleges that the Commissioner erred in adding to income reported by him certain dividends which the petitioner claims belong to his son and daughter.
FINDINGS OF FACT.
The petitioner is a resident of the village of Glencoe, a suburb of Chicago. He was a stockholder in Stevens Brothers Corporation, which operated a department store in Chicago. He owned 3,540 shares of the capital stock of that corporation. He owned this stock prior to 1905 and in that year, when his son was married, he created a parol trust for his son and daughter for two-thirds of this stock. He advised his son and daughter for two-thirds of this stock would be theirs and one-third*1707 his. He thereafter acted in the capacity of trustee for his son and daughter for their proportionate part thereof. He retained this stock and the control thereof in his own name. It was never transferred on the books of the corporation. In 1917 this trust arrangement was confirmed and in 1925 the trust was reduced to writing, incorporating what had previously been done by parol, and the Chicago Title & Trust Company was made co-trustee with the petitioner.
The Stevens Brothers Corporation originally bore the name of Charles A. Stevens Brothers, but between 1915 and 1917 the name was changed to Stevens Brothers Corporation and a slight adjustment was made in stock ownership, of which the petitioner's son and daughter were duly notified by the petitioner.
*53 Dividends of no consequence were declared previous to 1923. Previous to a 10 per cent dividend distribution in 1923, the petitioner advised the secretary of the corporation that his children each owned one-third of the stock which appeared in his name and asked that the dividend checks be made out accordingly. The secretary declined to do so upon the ground that the stock appeared of record in the petitioner's*1708 name and checks for the dividend were made out to the petitioner, there being three separate checks each representing one-third of the total amount of the dividend. The petitioner immediately endorsed a check representing one-third of the dividend to his daughter and another check representing another one-third to his son, and retained the third check for himself. He did not deposit his son's and daughter's checks in the bank.
The petitioner's son, Clyde G. Stevens, treated one-third of the stock as belonging to him from 1905 until the time of his death, sometime before the hearing of this proceeding, and desired to borrow money thereon for the purpose of going into business for himself. Clyde G. Stevens, in conversation, stated that his father had given him the shares as a wedding present and he also made statements as far back as 1905 with respect to his ownership of the stock.
In 1923 the corporation paid dividends, and $11,820, being one-third thereof, was reported by the petitioner in his return. The other two-thirds were reported in returns filed by his son and daughter, respectively, in the amount of $11,820 each. The respondent increased the petitioner's income as*1709 reported in the amount of $23,640 representing the dividends received by the son and daughter of the petitioner. This resulted in the deficiency here involved.
OPINION.
TRAMMELL: We have found as a fact that the petitioner created a parol trust making himself trustee for his son and daughter for two-thirds of the shares of stock owned by him in the Stevens Brothers Corporation. We think that all of the evidence supports this fact. The Commissioner relies upon the fact that the petitioner retained the stock in his own name, had control of it, and that the dividends were paid to him. The respondent also argues that the fact that the petitioner undertook to have the corporation make the checks payable to his son and daughter and the refusal to do so indicates that the corporation was not willing to accept the statement that a parol trust had been created. We think the explanation of the failure to do so made by the officer of the corporation to the effect that since the stock appeared in the name of the petitioner he could make the checks payable only in that name, is a good and sufficient reason, but we do not think that this indicates that the petitioner's statement, supported*1710 by all the other evidence, that a parol trust was *54 created, is not true. That a parol trust in personal property can be created is abundantly supported by authorities. The Illinois cases to that effect are as follows: ; ; ; ; ; , and other cases.
It is equally well established by authorities that an individual may constitute himself trustee with respect to property owned by himself. Perry on Trusts, vol. 1, 6th ed., p. 95, states as follows:
When a person sui juris orally or in writing explicitly or impliedly declares that he holds personal property in praesenti for another, he thereby constitutes himself an express trustee. Under these decisions trusts may be created by parol in any mere personal property, as in the shares of corporation, although the corporations themselves own real estate.
This proposition is abundantly supported by decisions.
*1711 The Commissioner contends that there is a distinction between this case and the case of . There is, of course, a difference in the facts and evidence by which the parol trust was established, but in principle there is no distinction. In this case the petitioner orally declared himself a trustee with respect to a certain portion of the stock owned by him. We have to rely upon oral testimony of the petitioner supported by that of his daughter and other testimony. In the
In view of the foregoing we think that the Commissioner erred in including the $23,640 dividends received by the petitioner in trust for his son and daughter.