Helvering v. Clifford, 309 U.S. 331 (1940)

MR. JUSTICE ROBERTS, dissenting.

I think the judgment should be affirmed.

The decision of the court disregards the fundamental principle that legislation is not the function of the judiciary, but of Congress.

In every revenue act from that of 1916 to the one now in force, a distinction has been made between income of individuals and income from property held in trust.{1} It has been the practice to define income of individuals, and, in separate sections, under the heading "Estates and Trusts," to provide that the tax imposed upon individuals shall apply to the income of estates or of any kind of property held in trust. A trust is a separate taxable entity. The trust here in question is a true trust.

While the earlier acts were in force, creators of trusts reserved power to repossess the trust corpus. It became common also to establish trusts under which, at the grantor’s discretion, all or part of the income might be paid to him, and to set up trusts to pay life insurance premiums upon policies on the grantor’s life. The situation was analogous to that now presented. The Treasury, instead of asking this Court, under the guise of construction, to amend the act, went to Congress for new legislation. Congress provided, by § 219(g)(h) of the Revenue Act of 1924, that, if the grantor set up such a life insurance trust, or one under which he could direct the payment of the trust income to himself, or had the power to revest the principal in himself during any taxable year, the income of the trust, for the taxable year, was to be treated as his.{2}

After the adoption of these amendments, taxpayers resorted to the creation of revocable trusts with a provision that more than a year’s notice of revocation should be necessary to termination. Such a trust was held not to be within the terms of § 219(g) of the Revenue Act of 1924, 43 Stat. 277, because not revocable within the taxable year.{3}

Again, without seeking amendment in the guise of construction from this court, the Treasury applied to Congress, which met the situation by adopting § 166 of the Revenue Act of 1934, which provided that, in the case of a trust under which the grantor reserved the power atany time to revest the corpus in himself, the income of the trust should be considered that of the grantor.

The Treasury had asked that there should also be included in that act a provision taxing to the grantor income from short-term trusts. After the House Ways and Means Committee had rendered a report on the proposed bill, the Treasury, upon examination of the report, submitted a statement to the Committee containing recommendations for additional provisions; amongst others, the following:

(6) The income from short-term trusts and trusts which are revocable by the creator at the expiration of a short period after notice by him should be made taxable to the creator of the trust.

Congress adopted an amendment to cover the one situation, but did not accept the Treasury’s recommendation as to the other.{4} The statute, as before, clearly provided that the income from a short-term irrevocable trust was taxable to the trust, or the beneficiary, and not to the grantor.

The regulations under § 166 of the Act of 1932 contained no suggestion that term trusts were taxable to the creator, though, if the petitioner is right, they would be equally so under that act as under later ones. Thus, though the Treasury realized that irrevocable short-term trusts did not fall within the scope of § 166, instead of going to Congress for amendment of the law, it comes here with a plea for interpretation which is, in effect, such amendment.

Its claim, in support of this effort, that a reversionary interest in the grantor is a "power to revest" the corpus within the meaning of § 166 so as to render the income taxable to the grantor is plainly untenable.{5} That theory was first advanced in a regulation issued under the 1934 act,{6} but was abandoned March 7, 1936, when the regulation was revised to read substantially in its present form.{7} The Board of Tax Appeals held a possibility of reverter is not the "power to revest" described in § 166.{8} The petitioner acquiesced in the decision.{9} The Treasury thereafter ruled that a grantor was not taxable on the income of a trust where he had retained a reversionary interest.{10}

I think it clear that the administrative interpretation has not been consistent, and that reenactment of § 166 is therefore not a ratification by Congress of the present construction.

The revised regulations indicating that, in some circumstances, the separate taxability of the trust may be ignored are said to rest on § 166, and also on § 22(a), which defines income. The regulation is not only without support in the statute, but contrary to the entire statutory scheme, and, as it now stands, is vague and meaningless as respects the taxability to the grantor of income from an irrevocable term trust.

To construe either § 166 or § 22(a) of the statute as justifying taxation of the income to respondent in this case is, in my judgment, to write into the statute what is not there, and what Congress has omitted to place there.

If judges were members of the legislature, they might well vote to amend the act so as to tax such income in order to frustrate avoidance of tax; but, as judges, they exercise a very different function. They ought to read the act to cover nothing more than Congress has specified. Courts ought not to stop loopholes in an act at the behest of the Government, nor relieve from what they deem a harsh provision plainly stated at the behest of the taxpayer. Relief in either case should be sought in another quarter.

No such dictum as that Congress has, in the income tax law, attempted to exercise its power to the fullest extent will justify the extension of a plain provision to an object of taxation not embraced within it. If the contrary were true, the courts might supply whatever they considered a deficiency in the sweep of a taxing act. I cannot construe the court’s opinion as attempting less.

The fact that the petitioner is, in truth, asking us to legislate in this case is evident from the form of the existing regulation and from the argument presented. The important portion of the regulation reads as follows:

In determining whether the grantor is in substance the owner of the corpus, the Act has its own standard, which is a substantial one, dependent neither on the niceties of the particular conveyancing device used nor on the technical description which the law of property gives to the estate or interest transferred to the trustees or beneficiaries of the trust. In that determination, among the material factors are: the fact that the corpus is to be returned to the grantor after a specific term; the fact that the corpus is or may be administered in the interest of the grantor; the fact that the anticipated income is being appropriated in advance for the customary expenditures of the grantor or those which he would ordinarily and naturally make, and any other circumstance bearing on the impermanence and indefiniteness with which the grantor has parted with the substantial incidents of ownership in the corpus.

In his brief the petitioner says:

On the other hand, the income of a long-term irrevocable trust which committed the possession and control of the corpus to an independent trustee would not likely be taxed to the settlor merely because of a reversionary interest. The question here, as in many other tax problems, is simply one of degree. The grantor’s liability to tax must depend upon whether he retains so many of the attributes of ownership as to require that he be treated as the owner for tax purposes, or whether he has given up the substance of his dominion and control over the trust property.

Under these circumstances, the question of precisely where the line should be drawn between those irrevocable trusts which deprive the grantor of command over the trust property and those which leave in him the practical equivalent of ownership is, in our view, a matter peculiarly for the judgment of the agency charged with the administration of the tax law.

(Italics supplied.)

It is not our function to draw any such line as the argument suggests. That is the prerogative of Congress. As far back as 1922, Parliament amended the British Income Tax Act, so that there would be no dispute as to what short term-trust income should be taxable to the grantor, by making taxable to him any income which, by virtue of any disposition, is payable to, or applicable for the benefit of, any other person for a period which cannot exceed six years.{11}

If some short-term trusts are to be treated as nonexistent for income tax purposes, it is for Congress to specify them.

MR. JUSTICE McREYNOLDS joins in this opinion.

1. Revenue Act of 1916, 39 Stat. 756, 757, § 2(a)(b); Revenue Act of 1918, 40 Stat. 1057, 1065, 1071, § 213(a), § 219; Revenue Act of 1921, 42 Stat. 227, 238, 246, § 213(a), § 219; Revenue Act of 1924, 43 Stat. 253, 267, 275, § 213(a), § 219; Revenue Act of 1926, 44 Stat. 9, 23, 32, § 213(a), § 219; Revenue Act of 1928, 45 Stat. 791, 797, 838-840, § 22(a), §§ 161 to 169, incl.; Revenue Act of 1932, 47 Stat. 169, 178, 219-222, § 22(a), §§ 161 to 169 incl.; Revenue Act of 1934, 48 Stat. 680, 686, 727-729, § 22(a), §§ 161 to 167, incl.; Revenue Act of 1936, 49 Stat. 1648, 1657, 1706, 1707, § 22(a), §§ 161 to 167, incl.

2. See Corliss v. Bowers, 281 U.S. 376; Burnet v. Wells, 289 U.S. 670.

3. Lewis v. White, 56 F.2d 390; White v. Lewis, 61 F.2d 1046; Langley v. Commissioner, 61 F.2d 796; Commissioner v. Grosvenor, 85 F.2d 2; Farber v. United States, Ct.Cls. 1 F.Supp. 859.

4. Hearings on H.R., 7835, 73d Cong., 2d Sess., p. 151; H.R. 1385, 73d Cong., 2d Sess., p. 24.

5. United States v. First National Bank, 74 F.2d 360; Corning v. Commissioner, 104 F.2d 329.

6. Regulations 86, Art. 166-1.

7. T.D. 4629, C.B. XV-1, 140.

8. Downs v. Commissioner, 36 B.T.A. 1129.

9. C.B.1938-1, p. 9.

10. I.T. 3238, C.B. XVII-2, p. 204.

11. 12 and 13 Geo. 5, ch. 17, § 20, L.R. Statutes, Vol. 60, p. 373. Though the provision has been thought unsatisfactory, the suggestion made for improvement is that the matter be brought before Parliament for action.