Docket Nos. 103886 103887 103888 103889.
William A. Blakley, Esq., for the petitioners. D. D. Smith, Esq., for the respondent.
Petitioner obtained a divorce in 1929 in Texas. The divorce decree did not partition the property of the spouses, award custody of minor children, or provide for the support of the children. Petitioner did not enter into any contract with his former wife to contribute to the support of her and the children. After the divorce petitioner and his former wife executed an agreement. He agreed to create a trust of $100,000 principal, one-half of income to be used for support of their two children and one-half of income to be used for her support for life, in consideration for her giving a quitclaim deed of all of her interest in his property and the former community property. Held:
(1) Under Texas law petitioner was under continuing duty to support his children after the divorce, the trust income which was required to be used for that purpose discharged petitioner's obligation, and he is taxable on one-half of the trust income.
(2) Under Texas law there is no statutory authority for a divorce court to award permanent alimony, and implication of any continuing obligation to support a divorced wife, if at all, arises only by virtue of the manner of the court's partition of property in a divorce decree. Where no partition of property is made in a divorce decree, spouses become tenants in common in former community property. The trust was created pursuant to a property settlement agreement in which petitioner did not assume any obligation to support his former wife. He is not taxable on the one-half of the trust income which is for her use, for the years 1935 to 1938, inclusive. For the year 1934 petitioner guaranteed $1,200 of trust income and is taxable for that amount. William A. Blakley, Esq., for the petitioners. D. D. Smith, Esq., for the respondent.
The Commissioner determined deficiencies in income tax as follows:
+------------------------------------------------------------+ ¦Calvin H. Sugg¦ ¦Dora A. Sugg¦ ¦ ¦ +--------------+----------+------------+----------+----------¦ ¦Year ¦Docket No.¦Deficiency ¦Docket No.¦Deficiency¦ +--------------+----------+------------+----------+----------¦ ¦1934 ¦103886 ¦$245.36 ¦ ¦ ¦ +--------------+----------+------------+----------+----------¦ ¦1935 ¦103886 ¦457.82 ¦ ¦ ¦ +--------------+----------+------------+----------+----------¦ ¦1936 ¦103886 ¦369.24 ¦103888 ¦$7.26 ¦ +--------------+----------+------------+----------+----------¦ ¦1937 ¦103887 ¦296.11 ¦103889 ¦296.11 ¦ +--------------+----------+------------+----------+----------¦ ¦1938 ¦103887 ¦221.52 ¦103889 ¦221.52 ¦ +------------------------------------------------------------+
The only question is whether or not income of a trust is taxable to petitioners, on the community basis, in the taxable years.
Petitioners filed their returns with the collector for the second district of Texas.
FINDINGS OF FACT.
Calvin H. Sugg and Dora A. Sugg are husband and wife. During the taxable years they resided in Irion County, Texas. They reported income, respectively, on the community property basis. They were married on November 14, 1936.
Calvin H. Sugg, hereinafter called the petitioner, married Inis H. Sugg, his former wife, on August 1, 1920. They were married in California, and lived there until January of 1926, when they moved to Irion County, Texas. They lived there until June of 1927, when the returned to California. Since June of 1927, Innis Sugg has lived in California. There are two children of that union, Eleanor and Marion, born August 7, 1921, and December 6, 1924, respectively. In 1928 Calvin Sugg and Inis Sugg separated permanently. On January 25, 1929, petitioner filed a suit for divorce against Inis Sugg in the District Court of Irion County, Texas. She did not contest the divorce suit. The District Court entered final judgment in the divorce proceeding on February 26, 1929. There was no appeal taken. The decree became final and remains in full force. The judgment dissolved the marriage and granted a divorce to petitioner. The divorce decree was brief. It made no mention of or reference to alimony, to the disposition of property, community or other property of the parties, or to the custody and support of the two children.
During the period of the separation petitioner sent Inis Sugg $500 a month for her and the children's support. Petitioner continued to make payments to Inis Sugg of $500 a month after the divorce until August of 1930, at which time a trust was created which is referred to hereinafter.
At some time before the entry of the divorce judgment petitioner and Inis Sugg carried on negotiations relating to a settlement. The proposed agreement was that petitioner would pay Inis Sugg $500 a month for the remainder of her life for her and the children's support in lieu of a property settlement. That was the tentative understanding of the parties at the time the divorce was granted. An agreement was drafted and it was signed by petitioner, but it was never signed by Inis Sugg. After the divorce attorneys advised her to proceed otherwise. On June 5, 1930, Inis Sugg filed a suit in the Superior Court of Los Angeles County, California for a division of property, for an accounting, and for money had and received. By her complaint she prayed for payment of $200,000. Thereafter, petitioner and Inis Sugg executed an agreement on August 13, 1930, under the terms of which petitioner agreed to create a trust and to transfer to a trustee cash and securities in the principal amount of $100,000, and Inis Sugg agreed to release and quitclaim to petitioner all of her interest of every character in all property of every kind held by him. In compliance with the agreement petitioner executed a trust agreement on August 21, 1930, and Inis Sugg, on August 22, 1930, caused to be dismissed with prejudice the suit instituted by her in the Superior Court.
The agreement of August 13, 1930, recites that the parties are divorced, that the judgment of divorce has become final, that the judgment of divorce made no adjudication or disposition of the property rights of the parties and no provision for ‘alimony or allowance for support of Inis‘, and that:
* * * the parties hereto desire to settle all of their respective property rights, claims and liabilities, including the obligations of Calvin for the support and maintenance of Inis and the two children of the parties * * *.
Other pertinent provisions of the agreement are as follows:
NOW, THEREFORE, in consideration of obligations of Calvin herein assumed to create the trust hereinafter provided for and to transfer thereto the securities hereinafter specified, Inis does hereby grant, bargain, sell and convey, release, remise and forever quitclaim unto Calvin all of her interest of every character in and to all property of every character held by him and/or standing in his name, including the separate property of Calvin and property held in tenancy in common by the parties hereto, and property previously held in community tenure between Inis and Calvin; and Inis does further hereby release Calvin from all liability for her maintenance and/or her support.
Inis further delivers to Calvin executed and acknowledged in due and proper form, deeds and quitclaims for record in the State of California and Texas.
Calvin hereby agrees to transfer or cause to be transferred to the Title Insurance and Trust Company, the trustee therein named, the assets listed in said declaration of trust, of a principal face value of One Hundred Thousand Dollars ($100,000.00), and in relation to the collateral trust bonds issued by the Central Loan Company of San Angelo, Texas, described in said declaration Calvin hereby guarantees the same to Inis in all particulars as provided in said trust.
Inis hereby undertakes and agrees to maintain and support Eleanor and Marion Sugg out of the net income from said trust; provided, however, that nothing herein shall require her to use more than twenty-five per cent (25%) of said net trust income for the support, maintenance and education of each of said children.
It is understood and agreed that Inis is to have the care, control and custody of the two said children, but in this connection it is understood and agreed that Calvin is at all reasonable times to have the right to visit and see said children, and at any reasonable time to have the said children visit him, Calvin agreeing to pay all their expenses incident to and while visiting him, and reserving the right at all times to assist said children in any way that he may think best, but this contract in no way obligates him so to do, except as stated; but, on the other hand, relieves him of his obligations to support said children insofar as such obligations are herein assumed by Inis, and insofar as said trust provides for such support.
The trust created by petitioner was executed by Inis Sugg, by petitioner, as trustor, and by the Title Insurance & Trust Co. of Los Angeles. The trust is to terminate upon the death of Inis Sugg. Petitioner reserved the right to revoke, terminate, and amend the trust, but only upon receiving the written approval of Inis Sugg. The declaration of trust recites that the trustee has received personal property (securities) and money from the trustor which was the separate property of Calvin Sugg prior to the creation of the trust ‘by reason of a Property Settlement Agreement‘ entered into between Calvin and Inis Sugg; that the trustee has power to invest and reinvest all principal and moneys received; that the trustee is to distribute all ‘net income‘ in equal monthly installments to Inis Sugg for life, provided that the trustee may, in its discretion, upon the failure of Inis Sugg to support properly each child, disburse one-fourth of the net income for the support and education of each child until each reaches the age of twenty-five.
By executing the agreement Inis Sugg agreed properly to support and educate each child, except that she is not required to use and disburse for such purposes more than one-fourth of the net income for each child. In order to achieve the above purpose, petitioner guaranteed the payment, when due, to the trustee, of the principal and interest of six bonds of the Central Loan Co. of San Angelo, Texas, in the aggregate principal amount of $65,000, the bonds being 6 percent collateral trust bonds which were placed in the trust at its creation, along with other cash and bonds, and in the event of a default in said bonds, petitioner bound himself to pay to the trustee the amount of the principal and/or interest so in default so that the beneficiary or beneficiaries should not be deprived of net income under the trust. Also, Inis and Calvin Sugg agreed that Inis should have the custody of the two children.
Upon termination of the trust, the net trust estate shall vest in the two children in equal shares, or in their issue, but in the event that neither child or surviving issue thereof be living, then the trust estate is to revert to petitioner, if living, or to his devisees or heirs at law.
The trust principal consisted of $10,000 in cash, $65,000 principal amount of 6 percent bonds of the Central Loan Co. of San Angelo, Texas, and one 6 percent investment certificate of the Mutual Building & Loan Association of Pomona, California, in the principal amount of $25,000. Petitioner did not guarantee all or part of the income of the trust, as such, for an indefinite period of time. His only guarantee was of the Central Loan Co. bonds. They had all matured and were paid prior to 1935. One bond for $25,000 matured on July 15, 1933. Five bonds in the amount of $8,000 each matured on the 15th day of February, March, April, May, and June of 1934. There were no defaults in interest or principal of the bonds, which were paid when due. In the taxable years 1935, 1936, and 1937, petitioner was not subject to any guarantee of any of the trust corpus or trust income. On each bond respectively which matured in 1934 semiannual interest (3 percent) became due on the date each bond matured, i.e., on the 15th day of February. March, April, May, and June, and $240 interest was due on each of the above dates. The total of the interest which became due in 19,4 on these bonds was $1,200. While there were no defaults in the interest, petitioner was liable under his guarantee for that amount of the trust income which was paid in 1934 in the event of default.
Inis Sugg delivered to petitioner a release and quitclaim of all her interest in property of every kind of petitioner, community and separate, after petitioner created the trust pursuant to his obligation under the agreement of August 13, 1930. The quitclaim deed was recorded in the records of Tom Green County, Texas, on September 3, 1930. Inis Sugg had executed the quitclaim deed on April 14, 1929, but had not delivered it to petitioner. From that date until the delivery of the deed to petitioner on or about August 21, 1930, the deed was held by Inis Sugg or her representatives.
Inis Sugg took custody of the children and they had remained in her custody except at times when they visited petitioner.
Inis Sugg remarried on November 14, 1936.
In determining the deficiencies for the years 1934 and 1935 respondent added to petitioner's income trust income as follows: 1934, $1,739.17; 1935, $2,450.34. The explanation given is that the respondent held that the above amounts represented ‘the portion of the Calvin H. Sugg Trust, P-9046, held to be taxable‘ to Calvin H. Sugg. In determining the deficiencies for 1936, 1937, and 1938 the respondent added trust income to the income of Calvin Sugg and Dora Sugg, on the community basis, as follows:
+------------------------------+ ¦ ¦Calvin Sugg ¦Dora Sugg ¦ +----+------------+------------¦ ¦1936¦$2,269.91 ¦$206.36 ¦ +----+------------+------------¦ ¦1937¦1,401.59 1/2¦1,401.59 1/2¦ +----+------------+------------¦ ¦1938¦1,314.36 ¦1,314.36 ¦ +------------------------------+
The parties have not stated the amounts of the trust income for each year involved. The explanation attached to the notice of deficiency refers, in each year, to ‘the portion‘ of the trust income held to be taxable to Calvin Sugg, alone, and to Calvin and Dora Sugg, as their community income. However, the issue is presented as though the amounts involved in determining the deficiencies represent the entire taxable income of the trust in each year, and the questions are considered under that assumption.
The broad question is whether or not petitioner is taxable for all of the trust income under the rule of Douglas v. Willcuts, 296 U.S. 1. However, there are two questions; one, whether petitioner is taxable on part of the trust income which Inis Sugg agreed to use for the support of the children; two, whether petitioner is taxable on the balance of the trust income which she could use for her own support.
It is stated in the trust instrument that the property delivered to the trustee by petitioner was the separate estate of Calvin Sugg immediately prior to the creation of the trust. For present purposes, therefore, it must be concluded that the trust fund was created out of petitioner's own property.
(1) The settled law of Texas is that the primary duty of supporting minor children rests upon the father, both before and after the divorce of the parents. Gully v. Gully, 231 S.W. 95. The legal duty of the father is both primary and continuing. See Gully v. Gully, supra, where it is stated:
On no other theory than that the legal duty of the father is both primary and continuing can be upheld the settled doctrine in this state that a recovery of damages by a child on account of the death of his father may be sustained for the entire cost of his support until he becomes of age, though the child is in the custody of his mother, by whom he is supported, and though he had no expectation of any voluntary contribution to his support from the father. (See cases cited.)
A decree of divorce which is silent as to the children's support does not relieve the father of his primary duty to support the children. Gully v. Gully, supra. An agreement made by a father with his divorced wife to support his children adds nothing to the obligation already resting on him except to fix the amount and duration of the payments. Smith v. Blanton, 240 S.W. 651, 654. A District Court has authority, after a decree of divorce has been granted, to make proper provision for support of the children. Later, in 1905, Bemus entered into an agreement with his former wife to settle their interest in community property, under the terms of which Bemus agreed to pay her $15 a month for the support of the children. In 1909 Bemus stopped making the payments and brought habeas corpus proceedings to obtain custody of the children. The former wife in her answer asked the court to place a trust on Bemus' property to insure the support of the children. The court ordered a trust on certain property of Bemus and directed the trustee to pay an amount out of the revenues of the property each month to the mother for child support. The court said that the ‘judicial power of the courts to enforce the parents' obligation for support of the children is not lost by the failure of the parties in the divorce proceeding to invoke, in behalf of the children, the exercise of the power.‘
There is no doubt whatever, that, under Texas law, petitioner was under a continuing liability to support his children. Speer, Law of Marital Rights in Texas, 3d ed., 1929, pars. 634, 635, pp. 789-793. Also, the divorce decree being silent on the matter of support and division of property, the District Court could have taken jurisdiction after the divorce, in a properly instituted suit, to decree that a trustee be appointed over petitioner's property and pay to the divorced wife, out of the revenues of the property, a specified monthly sum for the children's support, if the trust created in 1930 had proved to be inadequate. Speer, supra, p. 793. The divorce decree of 1929, being silent on the matter of the children's support, was not conclusive, under the rule that a final judgment is conclusive not only of the issues actually litigated but of all issues properly involved or which should have been litigated. That rule does not apply to the independent rights of the children, who were not privies of the parties to the divorce. Townsend v. Townsend, 115 S.W.(2d) 769, 772.
It follows that Commissioner v. Grosvenor, 85 Fed.(2d) 2, is controlling here and petitioner is taxable on the income of the trust which was for the support of the children in the taxable year and which directly benefited petitioner by discharging his duty to support his children in the taxable years. To the extent that Inis Sugg, under her agreement, expended the trust income for the support of the children, petitioner was relieved of his legal obligation. See also, Ernestine Mitchell, 38 B.T.A. 1336.
Petitioner cites Cunningham v. Cunningham, 40 S.W.(2d) 46, and Hooten v. Hooten, 15 S.W.(2d) 141; affd., 40 S.W.(2d) 52, in support of his theory that he was not liable for the support of the children in the taxable years. Without question, there have been numerous instances in the litigation in Texas on the general subject where children have failed to obtain relief from the courts because improper suits were instituted, and in 1935 a statute was enacted to provide authority in the courts, which they had not been given by earlier statutes, whereby enforcement of the legal duty to support children after divorce would be facilitated. Acts 1935, 44th Leg., p. 111, ch. 39; Vernon's Texas Civil Statutes of the State of Texas, Ann., vol. 13, p. 682, art. 4639(a). However, in the long run of cases where children failed to receive relief, the courts made it clear that the suits failed because the wrong remedy was sought or the wrong party brought suit. The cases cited by petitioner are in this class. Neither case supports petitioner's contention that he was not under a continuing legal liability to support his children in the taxable years. The cases are not in point with respect to the underlying point at issue. They do, however, reiterate the general rules under Texas law heretofore set forth.
Petitioner apparently asks this Court to adopt the narrow view that because petitioner was not under a court order during the taxable year, i.e., because the income of his property was not subject to a charge for an allowance for his children's support under a court order, he was not under a continuing legal duty to support his children such as to make the income of the trust in question his income and taxable to him under Federal law. Giving due regard to the clear statement of the court in Hooten v. Hooten, supra, at page 143, with respect to the nature of a father's personal liability for the value of necessaries furnished to children, and the time when his ‘legal liability for a debt‘ arises, those factors are not in petitioner's favor here. Income tax liability deals with the economic benefits to the taxpayer and, where trust income is to be used to discharge and relieve a parent of his continuing duty to support his children, such income is taxable to the father, the grantor of the trust. For purposes of deciding the tax question under Federal statute, refinements of remedies under local law are not governing.
Until 1935, the only statutory authority for a court to make any decree regarding the future support of children after a divorce was article 4638, Revised Civil Statutes of Texas, 1925. That statute empowered a court pronouncing a decree of divorce to decree a division of the estate of the parties, having due regard for the rights of children. The Texas courts have pointed out frequently that the District Court has authority, even after granting a divorce, to make proper provision for the future support of minor children from the property of the father, but, that in the exercise of that power the court could not (prior to 1935) render a personal judgment against the father for a specific sum to be paid periodically in the future. However, the court could fix a reasonable allowance to be paid periodically and make the payment of such allowance a charge against the revenues of property belonging to the father. In Hooten v. Hooten, 15 S.W.(2d) 141, relied on by petitioner, a divorced wife failed in her suit because the trial court erred in making the allowance for future support of children a personal obligation of the father. On appeal the Civil Court of Appeals said that under the facts of the case the trial court should have placed property of the father in the hands of a trustee, with directions to use income therefrom for the support of the children. The court did not hold that the father was not under a continuing obligation to support his children. Rather, the court recognized such to be true. Also, the court found that the pleadings of the appellee, the former wife, were wrong, because she filed suit, not in her own right, but for the children as their next friend. Under Texas law children to whom necessaries have been supplied cannot sue the father to secure reimbursement to others. The right of action lies with the persons who furnished the necessaries. To the same effect is Cunningham v. Cunningham, 40 S.W.(2d) 46.There is a distinction made by the Texas decisions between the personal liability of the father after a divorce to others for the value of necessaries furnished his children and the power of a court in a divorce proceeding and after, to make provision for minor children from the separate property of the father. But this distinction, if it may be called such, has to do with enforcing the rights which grow out of the legal obligation of the father to support his children, both before and after the divorce. The procedure to be followed to enforce the father's duty to support varies with the situation existing, but, despite the fine channels into which procedure must follow, there is always existent the legal duty of the father to support the child.
In the situation here, if the trust had failed to produce income sufficient to provide necessaries to the children, the divorced wife, in her own right, could have sued petitioner to recover the value of the necessaries so furnished. Hooten v. Hooten, supra; Speer, supra, p. 799. Therefore, it can not be said here that the 1929 divorce decree of the 1930 agreement had discharged petitioner's personal obligation pro tanto under the rule of Helvering v. Fuller, 310 U.S. 69. If such liability of the father under Texas law be regarded as contingent, even so, a legal obligation can be a continuing obligation even though its fulfillment is contingent upon future judicial action. The income of the trust may be sufficient and it may never be necessary for the mother or any person to apply to a court to enforce the father's obligation to support his children. So long as the father can be required to make contributions for the support of the children he is under a ‘continuing obligation, however contingent.‘ Helvering v. Fish, 309 U.S. 149.
Inis Sugg was required to use, at the most, 50 percent of the trust income for the support of the two children until each child becomes 25 years of age. No proof has been offered of what amount was spent in each year for that purpose. Therefore, it must be assumed that 50 percent of the trust income in each taxable year was used to support the children. The burden is on petitioner to establish the facts under this point. Commissioner v. Grosvenor, supra. It is held that 50 percent of the trust income in each year is taxable to petitioner as his income. For the year 1934 petitioner is taxable on more than 50 percent of the trust income. He guaranteed the payment of interest on the bonds of the Central Loan Co. The interest amounted to $1,200 in 1934. It is provided in section three of the trust indenture that petitioner guaranteed these bonds to the end that the income from the trust for the support of the children should not be delayed or lost. Accordingly, until those bonds were all redeemed, which took place in 1934, petitioner guaranteed the trust income to be derived from those bonds. Under the rule of Helvering v. Leonard, 310 U.S. 80, petitioner is taxable on the income derived from those bonds in the year 1934, the earliest taxable year involved. On this point it is pointed out that petitioner's continuing, contingent personal obligation under his guarantee of the principal and interest of the specified bonds ended in 1934, when the bonds were paid in full, and there was no liability for income tax upon other income of the trust in 1934 and in the succeeding taxable years. See Helvering v. Leonard, supra, where the Court said:
* * * So far as the guarantee alone is concerned, they permitted his preexisting unconditional duty to be transformed into a limited contingent one. But nevertheless they placed a specific and adequate sanction on that duty, so that respondent's personal obligation would not be fully discharged at least until complete payment of the principal and interest on the 6% bonds had been made.
(2) The second question relates to petitioner's liability for tax on income of the trust for the use of his former wife, Inis Sugg. Before considering that question it is necessary to dispose of a fact question.
Respondent has requested that it be found as a fact that prior to the divorce the parties ‘entered into an agreement, reduced to writing, and signed by Calvin H. Sugg‘ which provided that petitioner would pay Inis Sugg $500 per month for the duration of her life for her and the children's support. Respondent, assuming that there was such a binding contract, argues that petitioner was under a self-imposed obligation until August of 1930 to pay his former wife a monthly sum for life and that the trust was created for the purpose of discharging that self-imposed obligation. The record does not support respondent's conclusion or theory. It appears that petitioner was willing to make a contract to pay Inis Sugg $500 a month for life in consideration for her giving a release to petitioner of all of her interest in all of the property of petitioner, separate and community. The years prior to 1934 not being before us, there is no question relating to petitioner's tax liability on the monthly payments which he made up to August of 1930, voluntarily. But no binding contract was made between the parties that petitioner would pay his former wife $500 a month for life. The written draft was executed by only one party and the proposed agreement was intended to be a bi-lateral contract. Inis Sugg did not sign the agreement and her consideration, the quitclaim deed, was not delivered to petitioner in connection with the uncompleted agreement under consideration in 1929. She gave the quitclaim deed in consideration for petitioner's covenants set forth in the 1930 agreement. Accordingly, the question under this issue must be considered solely with respect to the terms of the 1930 agreement. The facts pertaining to the prior negotiations and petitioner's voluntary payments made prior to August of 1930 are deemed not material to the question at issue. ,
The divorce judgment entered in 1929, which has become final, Townsend v. Townsend, supra; Speer, supra, par. 640, pp. 798-800, did not make a partition of property. It is the general rule in Texas, as elsewhere, that when spouses are divorced, in the absence of judicial partition, they become tenants in common of the former community property, as if they had never been married, and are clothed with absolute control of their separate property. Speer, supra, p. 781; Fertitta v. Toler, 43 S.W.(2d) 467 (reversed on other grounds, 67 S.W.(2d) 299); Kirkwood v. Domnan, 16 S.W. 428. It is true that a court in a divorce proceeding in Texas, under the statutory authority to divide the estate of the parties at the time of granting the divorce (art. 4638), and in order to do complete equity between the parties, may burden the real property of either spouse for the support of the other, Helm v. Helm, 291 S.W. 648, 650, and cases cited therein. Hedtke v. Hedtke, 248 S.W. 21; Milburn v. Milburn, 254 S.W. 121; Speer, supra, pars, 627-631; and if such is done, the income from the property belonging to one former spouse may be paid to the other for his or her support.
But the court did not provide in the divorce decree here that any of petitioner's property be burdened to provide support to his former wife and we do not have to consider where tax liability would be on income from property under such circumstances. It appears that such charge on the husband's property can only be made in the divorce suit and as part of the decree of divorce. Kirkwood v. Domnan, supra. As there was no partition of property in the divorce decree in any form, no presumption is present that petitioner was placed under a continuing liability to provide for his former wife by virtue of a partition of property. Under Texas statute alimony may be awarded only during the pendency of the divorce proceedings (art. 4637), and there is no express statutory provision for alimony after the divorce. Speer, supra, par. 609, pp. 746-751; Astall v. Astall, 283 S.W. 564. Only where the divorce court has made a division of property which appears to impose an obligation on the husband to make stated payments to his former wife, may the implication arise, if at all, for income tax purposes, that the husband is under a continuing obligation to support his wife, or to pay permanent alimony.
Petitioner and Inis Sugg entered into an agreement after the divorce and that agreement, aside from any references to the future support of the children, was a property settlement agreement. Whatever reference is made in the preamble to petitioner's obligation to support his former wife is immaterial, because the facts are that petitioner was not under a contractual obligation to support his wife prior to the 1930 agreement, and, as a matter of local law, under the divorce decree, he did not have to contribute to her support. Of course, this agreement was not approved by the divorce court in its decree, as it was nonexistent at the time. When the parties entered into the agreement, they owned their separate property and were tenants in common of the former community property, as a matter of Law. Inis Sugg had no claim on petitioner for support. She did have vested interests, because of their tenancy in common. She agreed to deed to petitioner all of her vested property rights in consideration for his transferring property of a value of $100,000 in trust, the income being payable to her for life. Until the children attained 25 years at least 50 percent of the income of the trust was to be payable to her. That was a contract. Considering the scope of the divorce decree and the property rights of the parties afterwards, it can not be said that the trust created by petitioner was a security device for a continuing obligation in petitioner to support Inis Sugg. There was no such continuing legal obligation. The 1930 agreement and the trust itself did not contain any such contractual obligation. Also, there was no power reserved by the divorce court to make any provision for Inis Sugg under which petitioner could be said to be subject to some contingent liability. It follows that the situation here falls on the side of Helvering v. Fuller, 310 U.S. 69, and that petitioner is not taxable on the trust income which was for the use of Inis Sugg. See Pearce v. Commissioner, 315 U.S. 543. Further, it is pointed out that respondent does not contend that the trust income is taxable to petitioner under section 167 of the Revenue Act of 1936 as grantor of the trust. See Commissioner v. Branch, 114 Fed.(2d) 985; Paul W. Litchfield, 39 B.T.A. 1017.
Because of the holding above that petitioner is taxable for one-half of the trust income in the taxable years, because that portion was the most that was to be used for the support of the children, it follows that the portion of the trust income remaining for the use of Inis Sugg was 50 percent and petitioner is not taxable for that portion of the trust income in the years 1935, 1936, 1937, and 1938. With respect to the year 1934, the guaranteed income from bonds amounted to $1,200. The trust income for 1934 was $1,739.17, and the interest from the bonds is in excess of one-half of that amount. Since petitioner was under a personal obligation in 1934 to make payment to the trustee from his own funds, in event of default, for the amount of income which the particular bonds would yield, under the rule of Helvering v. Leonard, supra, petitioner was under a continuing obligation to Inis Sugg because of the guarantee. That constituted an obligation assumed by him. It developed that the guarantee in 1934 was for $1,200 income. Petitioner is taxable upon that amount. Halbert P. Gillette, 46 B.T.A. 573.
Decision will be entered under Rule 50.