
    James J. McCabe, Jr., as Executor and Trustee of the Estate of James J. McCabe, Deceased, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 35231.
    Promulgated June 30, 1931.
    
      Herbert Q. Smyth, Jr., Esq., for the petitioner.
    
      John H. Pigg, Esq., for the respondent.
   OPINION.

Arundell:

As set forth in our preliminary statement, counsel for respondent has conceded that three-fifths of the profit realized on the sale in 1923 is properly taxable to the three children who had attained majority prior to the time of the sale. In view of this concession, made at the hearing and accepted by counsel for petitioner, there is left for us to determine only to whom the remaining two-fifths of the profit is taxable. Respondent contends that this two-fifths is taxable to the fiduciary. We think the respondent’s position is correct. The profit realized was not ordinary income distributable to the widow and the minor child, but was a realization of increase in value of the corpus which is not distributable until the termination of the trust. Gibbons v. Mahon, 135 U. S. 549; Henrietta Bendheim, 8 B. T. A. 158.

Decision will be entered under Rule 50.  