the normal tax and surtaxes on trustees Caminetti v. United States, 242 U. S. with respect to trust income accumulated 470, 490, 61 L. ed. 442, 455, L.R.A.1917F, in their hands for unascertained benefi- 502, 37 Sup. Ct. Rep. 192, Ann. Cas. 1917B, 1168; Thompson v. United States, Merchants' Loan & T. Co. v. Smie-246 U. S. 547, 551, 62 L. ed. 876, 879, tanka, 255 U. S. 509, 516, 65 L. ed. 38 Sup. Ct. Rep. 349; Eidman v. Mar751, 754, 15 A.L.R. 1305, 41 Sup. Ct. tinez, 184 U. S. 578, 46 L ed. 697, Rep. 386; Martin v. United States, 93 Sup. Ct. Rep. 515. C. C. A. 484, 168 Fed. 198; Randall v. Josselyn, 59 Vt. 557, 10 Atl. 577; Bramell v. Cole, 136 Mo. 201, 58 Am. St. Rep. 619, 37 S. W. 924.

1921.

SMIETANKA v. FIRST TRUST & SAV. BANK.

of the United States, and to every person
in the United States residing there. In
subd. 2, an additional or surtax is levied
on the net income of every individual.
Under G, the normal tax imposed on
individuals is extended to corporations.
Par. B defines the net income of individu-
als and specifies the deductions. Par. D
makes provision for returns by persons
and then says:

"Guardians, trustees, executors, ad-
ministrators, agents, receivers, conserv-
ators and all persons, corporations, or
associations acting in any fiduciary ca-
pacity, shall make and render a return of
the net income of the person for whom
they act, subject to this tax, coming into
their custody or control and management,
and be subject to all the provisions of
this section which apply to individuals."
Par. E provides that, among others, all
lessees or mortgagors of real or personal
property, trustees acting in any trust ca-
pacity, executors, administrators, agents,
receivers, conservators, having control,
receipt, custody, disposal, or payment of
annual gains, profits, and income [605]
of another person, exceeding $3,000 for
any taxable year, who are required to
make return in behalf of another, shall
deduct the normal tax on the income and
pay it to the United States, and they are
each made personally liable for such tax.
It is further declared that these pay-
ments of the tax at the source shall only
apply to the normal tax thereinbefore
imposed on individuals.

It is obvious from a reading of the stat-
ute, the relevant provisions of which we
have summarized, that Congress was
seeking to require fiduciaries to make re-
turn and pay the normal tax due from
persons subject to the tax on such income
as the fiduciaries were receiving for such
persons. There was nowhere in the act
a payment required of the fiduciary of a
tax upon the income of the estate or trust
property, the income from which he
collects, except as it is to inure to the
benefit of a person or an individual from
whose income he is authorized and re-
quired to deduct the normal tax thereon.
There must have been a taxable person
for whom the fiduciary was acting to
make the provisions relied upon by the
There was
government applicable.
provision for the payment "at the source"
by the fiduciary of anything but the
It was intended that the
normal tax.
additional or surtax should be paid by
the cestui que trust. Here there was no
cestui que trust to pay a surtax.

There was
beneficiaries.
to be accumulated for unborn or un-
ascertained
indicated in the taxing A the congres-
sional intention to tax citizens every-
where, and noncitizens, resident in the
United States, including persons, uatural
and corporate, on income from every
source, less allowed deductions. But no-
stretched to include unborn beneficiaries
where were words used which can be
for whom income may be accumulating.
It may be that Congress had a general
[606] intention to tax all incomes,
whether for the benefit of persons living
or unborn, but a general intention of
Otherwise the intention
this kind must be carried into lan-
guage which can be reasonably construed
to effect it.
cannot be enforced by the courts.
The provisions of such acts are not to
be extended by implicatioin. Treat v.
White, 181 U. S. 264, 267, 45 L. ed.
853, 854, 21 Sup. Ct. Rep. 611; United
States v. Field, 255 U. S. 257, 65 L. ed.
617, 41 Sup. Ct. Rep. 256; Gould v.
Gould, 245 U. S. 151, 153, 62 L. ed. 211,
213, 38 Sup. Ct. Rep. 53.

The Treasury Department did not
This was in
attempt, for two years, to collect tax on
income of this character.
accord with the ruling of Deputy_Com-
missioner of Internal Revenue Speer,
dated February 9, 1915, published by the
Department (Corporation Trust Company
Income Tax Service 1915, p. 426). He
only on such income as is payable to
held that "the income tax can be levied
to the provisions of the law."
some natural or artificial person subject

Subsequently this ruling was changed,
and the Commissioner of Internal Rev-
enue held that "when the beneficiary is
not in esse and the income of the estate
is retained by the fiduciary, such income
will be taxable to the estate as for an
individual, and the fiduciary will pay the
tax, both normal and additional."

This seems to us to graft something on the statute that is not there. It is an amendment, and not a construction, and such an amendment was made in subseCounsel for the government cite the quent income tax laws, as we shall see. case of Merchants' Loan & T. Co. v. no 15 A.L.R. 1305, 41 Sup. Ct. Rep. 386, Smietanka, 255 U. S. 509, 65 L. ed. 751, to support their contention. It does not do so because it deals with an amendment of the provision here under discussion. The issue there was the legality of an income received by him under a testaincome tax levied against a trustee for mentary trust to pay the net income to the widow for life and afterwards to the

No language in the act included a tax on income received by a trustee, by him 66 L. ed.

393

children. [607] It was held that the trustee was a taxable person under the Act of October 3, 1917 (40 Stat. at L. 331, chap. 63), which required trustees to render a return of the income for the person, trust, or estate for whom or which they act.

execution of a general power of appointment. It was held that while in equity property passing under such a power might be treated as assets of the donee for the use of his creditors, if executed in favor of a volunteer, it was not subject to distribution as part of the estate of the donee, and was not taxable. In the later act, such property was expressly included. This was thought by the court to show at least a legislative doubt whether the earlier act included such property. This court said (p. 264) that it would have been easy for Congress to express a

The Act of September 8, 1916 (39 Stat. at L. 757, chap. 463, Comp. Stat. § 6336b, Fed. Stat. Anno. Supp. 1918, p. 313), specifically declared that the income accumulated in trust for the benefit of unborn or unascertained persons should be taxed and assessed to the trustee. It is obvious that, in the acts sub-purpose to tax such property, but it had sequent to that of 1913, Congress sought to make specific provision for the casus omissus in the earlier act.

This case is not unlike that of United States v. Field, 255 U. S. 257, 65 L. ed. 617, 41 Sup. Ct. Rep. 256. The Revenue Act of 1916 imposed a tax on the estate of a decedent at the time of his death. The government sought to tax property passing under a decedent's testamentary

394

not done so. In the Act of 1913, it would have been easy to require a trustee to pay an income tax on income received by him for unborn beneficiaries, or for the trust or the estate. But Congress did not do so. In the next act, it did so. We cannot supply the omission in the earlier act.

The judgment of the Circuit Court of Appeals is affirmed. 257 U. S

MEMORANDA

OF

CASES DISPOSED OF WITHOUT OPINIONS.

October 10, 1921. Per Curiam: Dismissed for want of jurisdiction on the ground that there is no Federal question presented in the record. Gasquet v. Lapeyre, 242 U. S. 367, 369, 370, 61 L. ed. 367, 370, 37 Sup. Ct. Rep. 165.

LOUISIANA RAILWAY & NAVIGATION COM-
PANY, Plaintiff in Error, v. R. E. WIL-
LIAMS. [No. 353.]
Error to circuit court of appeals
frivolous Federal question.

In Error to the United States Circuit
Court of Appeals for the Fifth Circuit.
See same case below, 272 Fed. 439.
Mr. E. H. Randolph for plaintiff in

error.

STATE OF OKLAHOMA, Complainant, v. STATE OF TEXAS. [No. 20, Original.] October 17, 1921. The motion of the Melish Consolidated Placer Mining Association for the return of wells Nos. 152, 153, and 160 to the custody of the receiver is denied without prejudice to a renewal of such motion if, in the further progress of this cause, it becomes necessary or proper to renew the same.

ALBERT RENNIE, Plaintiff in Error, v.
JOHN W. GIBSON. [No. 25.]
Error to state court-Federal question.
State of Oklahoma.
In Error to the Supreme Court of the

See same case below, 75 Okla. 282, 183
Pac. 483.

Mr. John A. McClure for plaintiff in

error.

Mr. R. B. Brown for defendant in

error.

Mr. S. P. Jones for defendant in error. [611] October 10, 1921. Per Curiam: dismissed for want of purisdiction upon October 17, 1921. Per Curiam: Disthe authority of Farrell v. O'Brien (O'-missed for want of jurisdiction. Section Callaghan v. O'Brien) 199 U. S. 89, 100, 237 of the Judicial Code, as amended by 50 L. ed. 101, 107, 25 Sup. Ct. Rep. 727; the Act of September 6, 1916 (39 Stat. Toop v. Ulysses Land Co. 237 U. S. 580, at L. 726, chap. 448, Comp. Stat. § 1214, 583, 59 L. ed. 1127, 1128, 35 Sup. Ct. Fed. Stat. Anno. Supp. 1918, p. 411), Rep. 739; Sugarman v. United States, 249 U. S. 182, 184, 63 L. ed. 550, 551, 39 Carrollton, 252 U. S. 1, 5, 6, 64 L. ed. § 2; Jett Bros. Distilling Co. v. [612] Sup. Ct. Rep. 191, with imposition of 5 per cent penalty under the Twenty-third 421, 423, 424, 40 Sup. Ct. Kep. 255.

Rule.