Morris Moskin v. James W. Johnson, Collector of Internal Revenue

PER CURIAM. Plaintiff appeals from a judgment dismissing his claim for tax refunds on grounds of failure to prove good faith in the creation of interfamilial trusts. On this issue plaintiff had the burden of proof. Niles-Bement-Pond Co. v. United States, 281 U.S. 357, 50 S.Ct. 251, 74 L.Ed. 901. Judge Bondy in an extensive opinion, D.C.S.D.N.Y., 115 F. Supp. 565, found that, despite compliance with the formalities of state law in the execution of .these trusts, plaintiff had shown no effective diminution in his control over their corpus or income. Thus he held that the • income diverted to these trusts was taxable to plaintiff as settlor thereof under I.R.C. § 22(a), 26 U.S.C., citing. Helvering v. Elias, 2 Cir., 122 F.2d 171, certiorari denied Elias v. C. I. R., 314 U.S. 692, 62 S.Ct. 361, 86 L.Ed. 553; Jones v. Norris, 10 Cir., 122 F.2d 6; Edison v. C. I. R., 8 Cir., 148 F.2d 810, certiorari denied 326 U.S. 721, 66 S.Ct. 25, 90 L.Ed. 427. We concur in these findings of the trial judge. On this basis we do not need to consider the applicability of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, as relied on by the Collector. Affirmed.