Van Aken v. Commissioner

ANNIE LOUISE VAN AKEN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Van Aken v. Commissioner Docket Nos. 76894, 79334. United States Board of Tax Appeals 35 B.T.A. 151; 1936 BTA LEXIS 558; December 4, 1936, Promulgated *558 1. DOWER RIGHTS - INSTRUMENT PROVIDING FOR TRANSFER, CONSTRUED. - Petitioner's husband died testate November 18, 1930. In his will the husband made certain provisions for petitioner, in lieu of dower. Petitioner filed a dissent to the will and thereby became endowed of a life estate in one-half of her deceased husband's realty located in Alabama. Subsequently, petitioner entered into an agreement with the testamentary trustee, pursuant to which she conveyed to the trustee by quitclaim deed all of her right, title, and interest in the dower lands, subject to the provision that the trustee should account for and pay over to her monthly one-half of the net operating income therefrom. Held, said agreement did not effect a sale of petitioner's dower consummate for a consideration payable in installments, but created a trust of which petitioner is the income beneficiary; held, further, petitioner's share of the distributable net income is taxable to her as such. Robert Hoe Estate Co.,32 B.T.A. 903; affd., 85 Fed.(2d) 4, distinguished. 2. DEDUCTIONS FOR DEPRECIATION - LIFE TENANT - TRUST PROPERTY. - For the period from the date of decedent's*559 death to the date of the trust instrument, during which time petitioner owned a life estate in one-half of the dower lands, held, petitioiner is entitled to the agreed deduction for depreciation on the property of which she was such life tenant; held, further, that for the taxable periods subsequent to the date of the trust instrument petitioner is entitled to one-half of the total agreed deduction for depreciation on the basis of the trust income allocable to her, since the instrument creating the trust provided that one-half of the net operating income, computed without regard to depreciation or obsolescence as such, should be distributed to her. Sec. 23(k), Revenue Act of 1928. H. C. Kilpatrick, Esq., for the petitioner. R. P. Hertzog, Esq., and Conway N. Kitchen, Esq., for the respondent. HILL *152 These proceedings were duly consolidated for hearing, and involve the redetermination of deficiencies in income tax for the years 1931 and 1932 in the amounts of $22,647.56 and $35,362.26, respectively. The questions presented for decision are: (1) Whether amounts distributable to petitioner from the net operating income derived*560 from certain properties, hereinafter referred to as "dower lands", constitute taxable income to petitioner; and (2) whether petitioner is entitled to reduce her distributable share of the net operating income from the "dower lands" on account of any allowance for depreciation. At the hearing the parties filed a stipulation of facts, together with certain documentary exhibits, from which we find below the facts deemed essential to a discussion of the issues. FINDINGS OF FACT. The petitioner is an individual residing in Weld, Maine. She was the wife of Harvey G. Woodward, hereinafter called the decedent. Decedent died November 18, 1930, and petitioner is now the wife of Vernon W. Van Aken, whom she married on January 6, 1933. The decedent, who was a resident of Birmingham, Jefferson County, Alabama, left a last will and testament and codicil thereto, which, on December 20, 1930, were duly admitted to probate and letters testamentary were granted thereon on December 23, 1930, to the First National Bank of Birmingham, hereinafter called the trustee. On April 28, 1931, petitioner filed in court a dissent from decedent's will, pursuant to the provisions of sections 10593 and*561 10594 of the Code of Alabama, 1923. By his said will decedent made certain provisions for his wife, Annie Louise Woodward, including the sum of $2,000 per month for life, in lieu of dower, and, after providing other special bequests, gave the residue of his estate to the First National Bank of Birmingham, as trustee in trust for uses and purposes not material here. Decedent also appointed the same bank executor of his will. At the time of his death decedent owned improved real estate in Weld, Maine, and in Birmingham, Alabama. The Maine realty consisted of two residences. The Alabama realty consisted of a residence and certain business properties, improved with a hotel, office and store buildings, which were leased to tenants. These business properties are hereinafter sometimes called "the dower lands." Decedent left surviving him neither children, descendants of children, father, mother, brothers, sisters, nor descendants of brothers *153 or sisters. Under the Alabama statutes, had he died intestate, petitioner would have been his sole heir and distributee. As his widow, upon dissent from the will, petitioner was endowed, under the statutes of Alabama, of a life*562 estate of one-half of his real estate, and as a distributee was entitled to his entire personal estate, wherever situated, remaining after the payment of the debts of the estate. Upon such dissent, she became entitled, under the laws of the State of Maine, to one-half interest, in fee, in the real estate owned by decedent in that state. The value of the dower and interest in decedent's realty accruing to petitioner by reason of her dissent from the will was $593,233.28. On July 16, 1931, petitioner entered into two written agreements with the trustee under the will of decedent. These agreements consisted of a principal agreement and a supplemental agreement. The latter agreement related to matters not presently important. The general purposes of the principal agreement were stated therein as follows: The payment of the indebtedness of the estate, including inheritance and other taxes and charges against the administration, will require cash payments substantially in excess of the cash assets of the estate. The parties have agreed, as provided herein, for the assistance of the Trustee in the matter of the payment of the debts of the estate, for payments in lieu of formal*563 assignment of dower and for other settlements and adjustments between Mrs. Woodward and the Trustee: In addition, the principal agreement contained the following pertinent provisions: The trustee agreed to execute and deliver a quitclaim deed conveying to Mrs. Woodward all of its right, title, and interest in and to two parcels of real estate in the State of Maine owned by decedent at the time of his death, and also a license under which Mrs. Woodward might occupy the late home of decedent in Birmingham until such time as she should notify the trustee in writing that she no longer desired to occupy it. Mrs. Woodward agreed to execute and deliver a quitclaim conveying to the trustee all of her right, title, and interest in and to all real estate of which decedent died seized, other than that quitclaimed to her by the trustee, subject only to a lien reserved to her in lieu of dower, and to said license. Paragraph four of the principal agreement then provided as follows: It is agreed that the Trustee shall during the term of her life possess, manage and control the dower lands and the buildings thereon, and account to Mrs. Woodward for one-half of the net operating income*564 from the same as herein defined, payments to be made monthly in Birmingham to or upon her order and subject to adjustment at the end of each year or oftener, as provided herein. *154 For the year beginning July 1, 1931, the trustee agreed to pay to Mrs. Woodward, in 12 monthly installments, on or before the tenth day of each month, the sum of $85,000, being an estimate of one-half of the annual net operating income from the dower lands for such year. For each succeeding year the net income of the preceding year was to be used to determine the tentative monthly payments, any overpayments or underpayments resulting from the tentative monthly installments to be adjusted by the parties on the basis of annual audits by appropriate payment by the trustee to Mrs. Woodward or by Mrs. Woodward to the trustee, with interest at 6 percent per annum, computed on the average time, not later than 30 days after completion of the audit. The principal agreement further provided: 4. (c) In computing net operating income from the dower lands, there shall be deducted from gross revenues received by the Trustee or assigns from the rental or use of same and all improvements thereon the necessary*565 expense of operating and maintaining the buildings, including salaries and wages, taxes, insurance, repairs, replacements and alterations necessary to maintain the buildings in first-class condition for rental purposes, subject to the provisions set out below, but no sum shall be deducted for the services of the Trustee. * * * (1) As to all buildings and improvements, and parts thereof, on the lands * * * the term maintenance as employed in subdivision (c) shall include all expenditures, less salvage realized in cash or its equivalent, for maintenance of operations, repairs and all other charges properly chargeable to operating expenses under modern principles of accounting, but no accrual for depreciation and obsolescence as such, and there shall also be included the total of all expenditures and liability made or incurred for retirements, renewals, replacements, and all additions and betterments deemed appropriate by the Trustee to keep the buildings in rentable conditioin to best advantage. * * * Provided, * * * that in the event of any addition or betterment increasing the cubic content or substantially changing the character of a substantial part of the building the participation*566 of the respective parties in the cost shall be agreed upon or determined by arbitration hereunder. * * * 11. Mrs. Woodward, through her representatives or in person, shall have reasonable access to the books and records of the Trustee relating to the management and operation of the dower lands, and the Trustee shall render to her, at least annually, correct financial statements of the results of operation. * * * 13. Mrs. Woodweard shall be entitled to a lien on the dower lands of the same force and effect as a decree of the Chancery Court awarding dower based on the rental value of the lands, to secure the payment of the sums to be paid her under Paragraph Four hereof. * * * * * * 15. * * * The Trustee in its commercial capacity (that is, as The First National Bank of Birmingham) may purchase and acquire such notes and bonds, or may make loans to the Trustee for the payment of debts of the estate, may make advances and receive interest or other reasonable and proper *155 compensation in connection with its dealings with the Trustee in all respects as if it were a third party, subject only to the provision that any charges or profit made by the bank in or about*567 the transaction shall be reasonable in amount. * * * 18. In the event that for any reason there should for any year or years be a net operating deficit instead of income hereunder, the same shall be charged against the net income next thereafter maturing in determining the amount payable hereunder by Mrs. Woodward, or be otherwise paid by her. On July 21, 1931, the Circuit Court of Jefferson County, Alabama, on a bill in equity filed by the trustee, entered a decree approving the above mentioned principal agreement, and also the board of governors designated in decedent's will adopted a resolution approving the execution of the agreement. On July 17, 1931, the trustee paid to petitioner the sum of $148,179.09 as provided in said principal agreement. Of this amount $50,000 represented cash held by decedent at the time of his death, $36,027.87 represented income collected by the trustee on personal property of the estate, and $62,151.22 represented half of the net operating income of the dower lands for the period from November 18, 1930, to July 1, 1931. In her Federal income tax return for the year 1931 petitioner reported as taxable income only $33,841.91 of said sum*568 of $36,027.87. Respondent proposes to add to petitioner's reported income the difference of $2,185.96, and petitioner acquiesces in this adjustment. Petitioner did not report said sum of $62,151.22, nor any of the other payments set out in the next paragraph below. The sum of $62,151.22, received by petitioner on July 17, 1931, above referred to, represents one-half of the income from decedent's realty from November 18, 1930, to July 1, 1931, without adjustment for depreciation. The depreciation applicable thereto is $7,010.19, leaving a balance of $55,141.03 after such depreciation adjustment. The sum of $11,656.40 thereof is applicable to the period in 1930, and $43,484.63 thereof is applicable to the period in 1931. Petitioner concedes that this latter sum of $43,484.63 represents taxable income to her in 1931. The net operating income of the dower lands from November 19, 1930, to December 31, 1932, without deduction for depreciation, was as follows: For period November 19 to December 31, 1930 $23,312.80 For period January 1 to July 16, 1931 110,825.17 For period July 17 to December 31, 1931 71,937.84 For calendar year 1932 154,946.82 Depreciation*569 on the dower lands herein referred to during the period here involved was sustained at the rate of $44,200 per year. Respondent has allowed the trustee to deduct depreciation at such *156 rate in determining its taxable income and has not allowed any deduction on account thereof to petitioner. No amounts were paid by the trustee to petitioner on account of petitioner's share of such net operating income prior to July 17, 1931, when she was paid the sum of $62,151.22 mentioned above. Payments thereafter made to her from this source during the year 1931 aggregated $28,333.32, and during the calendar year 1932 aggregated $85,309.57. Petitioner received from the trustee during 1931 and 1932, pursuant to the terms of the principal agreement of July 16, 1931, all of decedent's personal property, wherever situated, in excess of his debts. Under the terms of the principal agreement petitioner received the quitclaim deeds to the Maine realty and the license to occupy for life the Birmingham residence, the aggregate value of the interests thereby conveyed to her being $7,257.23. With respect to the remaining realty (the dower lands) owned by decedent at the time of his death, *570 the petitioner under such principal agreement was entitled to receive for life one-half of the net operating income derived from such realty. Under the temrs of said principal agreement petitioner executed and delivered the quitclaim deed conveying to the trustee all of her right, title, and interest in and to the dower lands. Said quitclaim deed contained the following provisions: Know all men by these presents, That whereas The First National Bank of Birmingham, a corporation, as Trustee under the will of Harvey G. Woodward, deceased, probated in Jefferson County, Alabama, and Annie Louise Woodward, have entered into an agreement dated the 16th day of July 1931, by the terms whereof this conveyance is to be executed. * * * To have and to hold to the said The First National Bank of Birmingham as Trustee under the will of Harvey G. Woodward, deceased, its successors and assigns, in fee simple forever. But this conveyance is subject to, and there is reserved by the grantor, the lien given the grantor by the agreement aforesaid on the above described real estate. Petitioner's accounts were kept and her income computed in her income tax returns on the basis of cvash*571 receipts and disbursements. The trustee filed fiduciary returns of income for the fiscal years ended September 30, 1931, and September 30, 1932. In her income tax returns filed for the calendar years 1931 and 1932, petitioner did not return any part of the amounts of $62,151.22 and $28,333.32 paid to her by the trustee in 1931, nor any part of the sum of $85,309.57 paid to her in 1932. Respondent in his deficiency notice added to petitioner's reported income for such years the respective amounts of $90,862.31 for 1931 and $75,745.46 for 1932, which sums represent one-half of the net operating income from *157 the dower lands for the fiscal years ended September 30, 1931, and September 30, 1932, respectively, which were distributable to her under the terms of the principal agreement. OPINION. HILL: The first issue in this case involves the question whether petitioner is taxable upon her distributable share of the net operating income derived in the taxable years from the so-called dower lands. Petitioner contends that the principal agreement of July 16, 1931, entered into between her and the testamentary trustee, did not create a trust, but effected a sale of her*572 life estate in the dower lands for a consideration payable partly in installments, and that since the aggregate amount received in the taxable years did not exceed the basis of the property rights sold, no part of such amount constitutes taxable income to her. Respondent determined and here contends that the agreement referred to created a trust, of which petitioner is the income beneficiary, and that her distributable share of the net operating income is taxable to her as such. Upon the filing by petitioner of the dissent to decedent's will, she thereby became endowed of a life estate in one-half of the Alabama realty and of one-half of the Maine realty in fee. This included her right to the possession, management and control of her share of all the realty, as well as the income therefrom. Obviously, it was impracticable to divide the realty into two equal parts by metes and bounds, so that petitioner might have her dower interest in kind. Hence, the agreement in question was voluntarily worked out to define and provide for the rights of the respective parties in an equitable and satisfactory manner. Under the agreement, the testamentary trustee conveyed to petitioner by*573 quitclaim deed the estate's one-half interest in the Maine realty, and executed a license permitting petitioner to occupy the Birmingham residence for life. The value of the interests thereby conveyed to petitioner was $7,257.23. Petitioner purported to convey to the trustee by quitclaim deed all of her right, title and interest in the other dower lands, having a value of $593,233.28, but this conveyance was subject to and limited by the terms of the agreement pursuant to which the deed was executed and delivered. The agreement gave to the trustee the right, during the term of petitioner's life, to "possess, manage and control the dower lands" and required the trustee to "account to Mrs. Woodward for one-half of the net operating income from the same as herein defined, payments to be made monthly." The agreement provided that petitioner should be "entitled to a lien on the dower lands of the same force and effect as a decree of the Chancery Court awarding dower based on the rental value of the land", to secure payment by the *158 trustee of her distributable share of the net operating income. The agreement also provided that petitioner should pay a proportionate part of*574 the cost of any addition or betterment increasing the cubic content or substantially changing the character of the building, and in the event of an operating deficit, the amount thereof should be charged against the net income next thereafter maturing or petitioner's proportionate part be otherwise paid by her. All of these provisions negative the idea that petitioner sold her dower rights for a stated consideration, but, on the other hand, strongly support respondent's contention that, under the agreement, petitioner transferred only the legal title to the trustee, reserving the beneficial interest in the property or right to receive the income for life. By transferring to the trustee the legal title to her life estate in the dower lands, petitioner vested in the trustee the right to the possession, management, and control of her one-half of such lands. This latter right was undoubtedly of considerable value to the testamentary trustee, since the trustee was thereby vested with the exclusive and unrestricted control and management of all the dower lands, having a value of more than one million dollars. In exchange for such right of control the trustee transferred to petitioner*575 the estate's interests in other properties of a value slightly in excess of seven thousand dollars. But the transfer by petitioner of the legal title to the life estate in the dower lands was specifically subject to her right to receive one-half of the net operating income therefrom for life, a right which she possessed prior to the agreement and transfer. The effect of the transaction, then, was merely to transfer the legal title to the trustee, leaving in petitioner the right to the income. The entire beneficial interest in the transferred property was retained by and remained in petitioner. Furthermore, we think it is made plan by the thirteenth paragraph of the agreement that the beneficial interest in the transferred property remained in petitioner. That paragraph provided that petitioner should be entitled to a lien on the dower lands "of the same force and effect as a decree of the Chancery Court awarding dower based on the rental value of the lands," to secure the payment of petitioner's distributable share of the income. Certainly, a decree awarding dower would have vested in petitioner an equitable or beneficial interest, and the mortgage lien retained by petitioner*576 had the same force and effect. The agreement between the parties also provided that the trustee should "account to Mrs. Woodward for one-half of the net operating income," payments to be made monthly. This provision, in our opinion, clearly created a trust relationship between the testamentary trustee and petitioner. The testamentary trustee was thereby *159 made a trustee for petitioner, obligated to account for and pay over to petitioner her share of the income computed as provided for in the agreement. While it may be true, as argued by the petitioner, that the word "trustee" as used in the instrument was merely descriptive and referred to the testamentary trustee, such fact does not render the testamentary trustee any the less a trustee for petitioner. Failure to designate the testamentary trustee as a trustee for petitioner, or to use particular words of trust in the instrument, is immaterial if the instrument by its terms did in fact impose a trust relationship. It has been said many times that no particular form of words is required to create a trust, 26 R.C.L. 1180; *577 , and the use of the word "trust" or "trustee" is not essential, . A trust exists where the legal title is in one person and the equitable or beneficial interest in another, or as sometimes otherwise stated, where there are rights, titles, and interests in property distinct from the legal ownership. ; . The fact that the quitclaim deed transferring the legal title and the agreement establishing the trust were separate instruments does not affect the conclusion we reach that the two instruments construed together constituted a single transaction which resulted in the creation of a trust rather than a sale of property rights. In , the court pointed out that. The declaration of trust need not be contained in the instrument which transfers the legal title. It may be set forth in a separate instrument or in several instruments, provided they are related to and connected with each other, and, when construed together, *578 establish the existence of the trust (citing authorities). Therefore, as between the parties and the corporation, the proposal, the resolution of acceptance, the assignments, and the certificate of stock constituted one transaction, and the intent of the parties must be gathered from an examination of all of these instruments. Petitioner cites ; affd., , and urges that the decision in that case is controlling here. We can not agree. The cited case is distinguishable on the facts, as is made clearly apparent in the opinion of the Circuit Court of Appeals. In that case the widow of the decedent released and transferred to a corporation her dower consummate in consideration of an agreement on the part of the corporation to pay her "annually for and during the period of her natural life, an amount * * * equal to one third share * * * of the net annual income received annually by the corporation from the several plots * * * as long as the corporation shall continue to remain the owner." In the event of sale the corporation agreed to pay the widow a gross sum in lieu of her dower. *579 The court held *160 that by the agreement the widow made a sale of her dower, and did not retain any interest in the lands, saying: That she certainly did not do; the promise was not to pay her one-third of the profits in kind, to say nothing of giving her any right in the land itself; it was general and created a general obligation; had the company lost the money, even after the utmost diligence to keep it, it would still have been liable; payment and payment alone would be a discharge. The profits therefore belonged to the taxpayer, though they measured its performance to the last cent; for good or ill the parties meant the widow to part with all interest in the land and its usufruct; she was to be content with the promise alone. In the case at bar an entirely different situation is presented. Here the widow did not exchange her dower interest for the promise of the testamentary trustee to pay "an amount equal to" one-half of the net operating income; she transferred the legal title on condition that the trustee should account for and pay over to her each month one-half of the net operating income derived from the dower lands. She was entitled to one-half of the profits*580 in kind. The income when received by the trustee belonged to her. If the income after receipt had been lost, through no negligence of the trustee, it would have been petitioner's loss. The agreement of the parties plainly indicates that it was not intended that petitioner should part with all interest in the land and its usufruct; on the contrary the beneficial interest was vested in her and she was given a specific lien on the property of the same force and effect as a decree of the Chancery Court awarding dower to safeguard her interest and enforce an accounting and payment over of all the reserved income. The trustee could not sell the property except subject to her equitable interest, since it was provided that the agreement should be binding upon any assignee of the trustee. However, petitioner argues that even if the principal agreement of July 16, 1931, created a trust, the income distributable thereunder to petitioner is nevertheless not taxable to her, under the doctrine of ; ; *581 ; and . The decisions of the Circuit Courts in the three cases last cited were reversed by the Supreme Court, per curiam without opinion, on authority of Douglas v. Willcuts. In Douglas v. Willcuts, the trust income was payable to the wife of the grantor in lieu of alimony. In the Stokes and Schweitzer cases the trusts were established to provide income for the support, maintenance, and education of the minor children of the grantors, and in the Blumenthal case the settlor directed that the income of the trust be applied in discharge of a bank loan. In each case the income was held taxable to the grantor, because it was used for the direct benefit of the grantor in satisfying his preexisting legal obligation. *161 See also , and . In the instant case, petitioner was the grantor, as well as beneficiary, of the trust, and if the income were taxable to the grantor under the doctrine of the cited cases, it would be taxable to petitioner. *582 But there was no preexisting liability of the grantor which the income of the trust was used to satisfy. Hence, the income is not taxable to petitioner as grantor. And certainly the income is not taxable to the trustee, nor is any such contention made, since it was distributable currently to petitioner as beneficiary. Sec. 162(b), Revenue Acts of 1928 and 1932. If petitioner's contentions on this point should be sustained, it would result in the income in controversy escaping tax altogether, a result not contemplated by the statute. By express direction of the statute, distributable income of a trust must be included in computing the net income of the beneficiary, whether distributed or not. The distributable income involved here, is, therefore, taxable to petitioner as beneficiary of the trust created by the agreement of July 16, 1931. Cf. . Respondent's determination on the first issue is approved. The second issue raises the question whether petitioner is entitled to reduce her distributable shares of the net operating income from the dower lands on account of any deduction for depreciation. This question must*583 be considered in the light of materially different facts and circumstances existing during the periods prior and subsequent to July 16, 1931, embraced within the taxable years. The first period extends from November 18, 1930, the date of decedent's death, to July 16, 1931, the date of the agreement between petitioner and the testamentary trustee. By the filing of a dissent to decedent's will petitioner's dower rights became dower consummate, and included the right to the possession, control and management of, as well as the income derived from, one-half of the Alabama realty for life. During such period petitioner owned a life estate in the lands; she and the testamentary trustee were tenants in common, having equal rights in the property during that time. As such life tenant during the period mentioned, petitioner is entitled to the deduction for depreciation at the stipulated rate applicable to one-half of the dower property in which she owned the life estate, under the following provisions of section 23(k), Revenue Act of 1928: "In the case of property held by one person for life with remainder to another person, the deduction [for depreciation] shall be computed as if the*584 life tenant were the absolute owner of the property and shall be allowed to the life tenant." The second period referred to above embraces the portion of the calendar year 1931 subsequent to July 16, and the calendar year 1932. *162 Under the first issue we have found that pursuant to the principal agreement of July 16, 1931, petitioner transferred to the trustee the legal title to her interest in the dower lands, retaining the beneficial interest or right to receive the income therefrom for life. The question of petitioner's right to any deduction for depreciation subsequent to the creation of the trust is governed by the provisions of section 23(k), supra, and similar provisions of the same numbered section of the Revenue Act of 1932, reading as follows: In the case of property held in trust the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each. This statute has been construed as entitling the beneficiary to the depreciation allowance, to the exclusion*585 of the trustee, where the trust instrument provides that the income, computed without regard to depreciation, shall be distributed to a named beneficiary; and as requiring that the allowable deduction be granted in full to the trustee where the trust instrument provides that in determining the distributable income due allowance shall be made for keeping the trust corpus intact by retaining a reasonable amount of the current income for that purpose. See Article 201 of Regulations 74; . The trust instrument in this case contains no provision empowering the trustee in determining the distributable income to make allowance for keeping the trust corpus intact by retaining a reasonable amount of the current income for that purpose. In other words, the trust instrument makes no provision for the creation of a depreciation reserve. On the other hand, it specifically provides that in determining the distributable income no deductions shall be allowed for depreciation and obsolescence as such. It is true that the trust instrument provides that certain expenditures of a capital nature shall be deducted in determining the distributable income, *586 but such deductions are contingent upon the making of such expenditures and only to the extent thereof. It does not appear that any such expenditures or deductions were made in either of the taxable years herein involved. The distributable income having been computed without regard to depreciation, it is our opinion that under the facts in this case and under the statute and respondent's regulations petitioner is entitled to a deduction for one-half of the total agreed depreciation on the basis of the trust income allocable to her. On this issue respondent's action is reversed. Reviewed by the Board. Judgment will be entered under Rule 50.