
    Smart, Executrix, Respondent, vs. Wisconsin Tax Commission, Appellant.
    
      May 12
    
    October 14, 1931.
    
    
      For the appellant there were briefs by the Attorney General, F. C. Seibold, assistant attorney general, George A. Bowman, district attorney of Milwaukee county, and C. Stanley Perry, assistant district attorney, and oral argument by Mr. Seibold.
    
    For the respondent there was a brief by Fawsett & Shea, attorneys, and Kenneth E. Smart of counsel, all of Milwaukee, and oral argument by Mr. Smart.
    
   The following opinion was filed June 12, 1931:

Fairchild, J.

The decision in this case is controlled by the authorities and reasoning of Norris v. Wisconsin Tax Comm., decided herewith (ante, p. 626, 237 N. W. 113). The taxpayer here insists that no part of the sum of $15,484.50 is income to this taxpayer within the meaning of that term as used in sec. 1, art. VIII, Const., or as used in ch. 71 of the Wisconsin Statutes.

The law under which the taxing authorities seek to reach this item and tax it as income did not become effective until August, 1927. Mr. Smart died on January 7th preceding. This legislation did not change certain items into income which, by reason of such death, had already become corpus. Collection by the legal representative brought about no element of gain or profit to the estate, and gain or profit is the test as to whether or not it can be considered income. The decision of the circuit court setting aside the assessment must therefore be affirmed.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, without costs, on October 14, 1931.  