">*6 Gordon L. Byers, Esq., and Scott C. Lambert, Esq., 225 Bush St.,, San Francisco, Calif., for the petitioner. T. M. Mather, Esq., for the respondent.
ARUNDELL
Memorandum Opinion
ARUNDELL, Judge: This proceeding came on for hearing at San Francisco, California, on November 22, 1943 to test the correctness of the respondent's determination of a definiency in estate tax of $2,566.09 and to recover a claimed overpayment by petitioner. The case was submitted on the pleadings and raises the single question whether the fair market value of the corpus of a trust, created by the decedent on April 10, 1924, should be included in his estate for the purpose of computing the tax due. The trust was irrevocable and provided that the income be paid to decedent for his life, thereafter to his wife and children with remainder over. The petitioner relies on May v. Heiner, 281 U.S. 238">281 U.S. 238; respondent relies on Helvering v. Hallock, 309 U.S. 106">309 U.S. 106. It is respondent's position that the reservation of the income for life by the grantor of an irrevocable trust requires the inclusion of the corpus of the trust as a part of decedent's estate by reason">*7 of section 811 (c) of the Internal Revenue Code. Respondent's counsel frankly admitted that if 281 U.S. 238">May v. Heiner, supra, has not been superseded by 309 U.S. 106">Helvering v. Hallock, supra, then the petitioner should prevail. On this state of the record the presiding Judge decided the case from the bench finding the facts as agreed to by the parties in the pleadings and in open court and on authority of 281 U.S. 238">May v. Heiner, supra, gave judgment for the petitioner.
The conclusion here reached is in accordance with our decision in the Estate of Edward E. Bradley, 1 T.C. 518">1 T.C. 518, and the decisions of three Circuit Courts of Appeal. United States v. Brown, 134 Fed. (2d) 372 (CCA 9th); Commissioner v. Kellogg, 119 Fed. (2d) 54 (CCA 3rd); and Bankers Trust Co. v. Higgins, 136 Fed. (2d) 477 (CCA 2d).
Decision will be entered under Rule 50.