ernal Revenue Code and the corresponding provisions of the Revenue Acts of 1936 and 1938, and respondent relies on that section, as construed in Helvering v. Clifford, 309 U.S. 331, and related cases, such as Richardson v. Commissioner (C.C.A., 2d Cir.), 121 Fed.(2d) 1; certiorari denied, 314 U.S. 684; rehearing denied, 314 U.S. 711; Commissioner v. Barbour (C.C.A., 2d Cir.), 122 Fed. (2d) 165; certiorari denied, 314 U.S. 691; Commissioner v. Woolley (C.C.A., 2d Cir.), 122 Fed.(2d) 167; certiorari denied, 314 U.S. 693. Louis Stockstrom, 3 T.C. 255; affd. (C.C.A., 8th Cir.), 148 Fed.(2d) 491; certiorari denied, 326 U.S. 719; Ben F. Hopkins, 5 T.C. 803. The petitioner contends that the income of the trust is taxable to the trust under section 161(a)(1) and that it is not taxable to the petitioner under the Clifford and other cases, supra, following it, relying in particular upon Hall v. Commissioner (C.C.A., 10th Cir.), 150 Fed.(2d) 304; Donald S. Black, 5 T.C. 759; Herbert T. Cherry, 3 T.C. 1171; David Small, 3 T.C. 1142; Estate of Benjamin Lowenstein, 3 T.C. 1133; and Frederick Ayer, 45 B.T.A. 146. For the determination of the question involved herein, as stated in Miller v. Commissioner (C.C.A., 6th Cir.), 147 Fed.(2d) 189, ‘there are no precise standards or guides, either in the Act, regulations or decisions of the courts * * * . Each case must rest upon its own peculiar facts and circumstances.
It was not a power expressly retained in the trust instrument to the grantor as an individual. Cf. W. C. Cartinhour, 3 T.C. 482, 489; Herbert T. Cherry, 3 T.C. 1171, 1179. It would certainly be true also that the other two members of the advisory committee were acting in a fiduciary capacity.
It may be true that the extent of the managerial powers here is comparable to those of the trustee in the Stockstrom case but, even so, we have uniformly held that management powers through which no economic gain may be derived are not sufficient to justify holding the settlor-trustee chargeable with the income. Estate of Benjamin Lowenstein, 3 T.C. 1133; Lura H. Morgan, 2 T.C. 510; David Small, 3 T.C. 1142; Herbert T. Cherry, 3 T.C. 1171; W. C. Cartinhour, 3 T.C. 482. And see the following Circuit Courts of Appeal cases: Commissioner v. Branch, 114 Fed.(2d) 985; Jones v. Norris, 122 Fed.(2d) 6; Helvering v. Palmer, 115 Fed.(2d) 368; Armstrong v. Commissioner, 143 Fed.(2d) 700.
The cases principally relied upon by petitioners are listed below. Carleton H. Palmer, 40 B.T.A. 1002; affirmed per curiam, 115 Fed.(2d) 368; Commissioner v. Branch, 114 Fed.(2d) 985; Jones v. Norris, 122 Fed.(2d) 6; Frederick Ayer, 45 B.T.A. 146; Commissioner v. Katz, 139 Fed.(2d) 107; W. C. Cartinhour, 3 T.C. 482; Estate of Benjamin Lowenstein, 3 T.C. 1133; David Small, 3 T.C. 1142; Herbert T. Cherry, 3 T.C. 1171; and Armstrong v. Commissioner, 143 Fed.(2d) 700. We find it unnecessary to discuss in detail all of the cited cases on this question, and it would be futile to do so.
Lillian S. Whiteley was not experienced in such matters. Considering all the facts in the record, which we have endeavored to set forth fully in our findings of fact, we do not think there is any more reason to say that the income of the several trusts was taxable to the petitioner under section 22(a) than there was in such recent cases decided by this Court as David Small, 3 T.C. 1142; Herbert T. Cherry, 3 T.C. 1171; and Estate of Benjamin Lowenstein, 3 T.C. 1133. Respondent's contention that the net income of the trusts is taxable to petitioner under section 22(a) is not sustained.