
    In re SWEENEY’S ESTATE. MERGENTHALER et al. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 28.
    Circuit Court of Appeals, Second Circuit.
    Dec. 3, 1945.
    H. Kennedy McCook, of Washington, D. C., for petitioner.
    Samuel O. Clark, Jr., Sewall Key, Helen. R. Carloss, and Maryhelen Wigle, all of Washington, D. C., for respondent.
    Before L. HAND, SWAN, and FRANK, Circuit Judges.
   FRANK, Circuit Judge.

1. Taxpayer agrees that, had there been no new trust, the Commissioner’s determination would have been correct. As there is ample evidence to support the Tax Court’s inference that the change was merely formal, the new trust being a continuation of the old, we cannot disturb that Court’s decision.

2. The Tax Court did not discuss the transfers made by the daughter to the trustee after 1933. Although she filed gift tax returns with respect to these transfers, it is unlikely that these were gifts of her property since, had they been, she would have been increasing the life income of her wealthy father. As he, having his gift tax exemptions in mind, may have made these gifts to the trust in his daughter’s name, taxpayer, to overcome the presumption in favor of the Commissioner’s determination, should have offered proof — easily available to her — that she had been the real owner of the property added to the trust.

Affirmed.  