
    ARCHBOLD v. HELVERING, Commissioner of Internal Revenue, and three other cases.
    Nos. 39-42.
    Circuit Court of Appeals, Second Circuit.
    Dec. 2, 1940.
    William R. Spofford, Thomas Burns Drum, and Charles S. Jacobs, all of Philadelphia, Pa. (Ballard, Spahr, Andrews & Ingersoll, of Philadelphia, Pa., of counsel), for petitioners.
    Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Newton K. Fox, Sp. Assts. to Atty. Gen., for respondent.
    Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

This case presents no other questions than those decided in Van Vranken v. Helvering, 2 Cir., 115 F.2d 709, handed down herewith. It is true that here the trusts were not testamentary; but had been set up by a deed of the taxpayer’s ancestor, executed in 1910. The relevant statute is not § 113 (a) (5) of the Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 697, but § 113(a) (4) of the Act of 1932, 26 U.S. C.A. Int.Rev.Acts, page 515, and that has remained unchanged from the time of its first enactment in 1921. This might have required some separate consideration, if we had depended upon the changes in § 113(a) (5) in reaching our conclusion; but we did not. Again, there was in 1933 no regulation interpreting § 113(a) (4), but that too is not important, for we have not depended upon the regulation of 1934 in our reasoning in Van Vranken v. Helvering. Our discussion there can therefore serve here.

Orders affirmed.  