#### CATHERINE M. DREXEL v. THE UNITED STATES 1

[No. D-524.

Decided November 16, 1925]

*On the Proofs*

*■Taxes; income from trust estate.*— The annual distributive share of the net income of a trust estate is subject to the income tax, revenue act of 1921, 42 Stat. 227.

*The Reporter’s*statement of the case:

*Mr. Barry Mohun*for the plaintiff.

*Mr. Alexander H.*McCormick, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Catherine M. Drexel, is a citizen of the United States and a resident of Cornwells Heights, State of Pennsylvania.

II. Francis A. Drexel, father of plaintiff, a citizen of the United States and a resident of Philadelphia Pa., died on February 15, 1885. Said Francis A. Drexel left a last will and testament and codicil thereto, which were shortly after *217his death duly admitted to probate and record by the orphans’ court for the city and county of Philadelphia as the last will and testament and codicil of said Francis A. Drexel. A certified copy of the aforesaid will and codicil is attached to the petition filed herein on July 15, 1924, and by reference is made a part hereof. The seventh article of said will provides as follows:

“ The remaining nine-tenths part of all that, my said residuary estate, to be called the trust estate, I hereby give, devise, and bequeath to the said four trustees hereinbefore appointed (and should they at any time during the continuance of the trust be reduced as aforesaid to three in number, then to said three remaining trustees), their heirs, successors, executors, administrators, and assigns, in trust, nevertheless, and for the following uses and purposes and none other, to wit: In trust, to collect the rents, issues, profits, dividends, and interest and income of the said trust estate (Francis A. Drexel), and after paying and deducting therefrom all taxes, charges, repairs, and other necessary current expenses to pay the balance or net income as received, one-third part thereof to each of my three daughters, namely: Elizabeth L. Drexel, Catherine M. Drexel, and Louise B. Drexel, for and during their natural lives, respectively * *

III. Pursuant to the terms of said will plaintiff received during the calendar year 1923 from the trustees, as aforesaid, the sum of $217,426.98, which came to plaintiff solely as her distributive share of the net income of said trust estate for said year 1923.

IY. On March 15, 1924, plaintiff filed with the collector of internal revenue for the first district of Pennsylvania, with office in Philadelphia in said State, an income-tax return for the calendar year 1923 under the revenue act of 1921. The total amount reported in such return as gross income was $218,765.18, of which sum $217,426.98 was, as heretofore shown, received by plaintiff from the trustees of the trust estate created by the last will and testament of said Francis A. Drexel. Except for the inclusion in said return of the aforesaid sum of $217,426.98 received by the plaintiff from the trust estate created by her father’s will, as above shown, plaintiff would have had no taxable income for the year 1923.

Y. The aforesaid return of plaintiff indicated a total tax liability of $74,390.32 for the vear 1923. One-fourth thereof, *218or $18,597.58, was, if due at all, due on March 15, 1924, and such amount was on that date paid to the aforesaid collector of internal revenue involuntarily and under written protest.

VI. The said sum of $18,597.58 so paid by plaintiff was duly turned over and delivered to the United States by said collector of internal revenue in the usual and ordinary course of his business.

VII. On or about May 12,1924, plaintiff duly filed a claim for refund of the aforesaid $18,597.58 with the Commissioner of Internal Revenue in accordance with the provisions of law in that regard and the regulations of the Secretary of the Treasury in pursuance thereof. On June 16, 1924, the Commissioner of Internal Revenue rejected and denied said claim and has continuously since declined and still declines and refuses to refund to plaintiff the moneys, or any part thereof, asked and demanded in her claim as aforesaid.

The court decided that plaintiff was not entitled to recover.

1

 Writ of certiorari denied.

Booth, Judge,

delivered the opinion of the court:

The facts of this case are stipulated. Plaintiff concedes that the case must be differentiated from the case of *Irwin*v. *Gavit,*268 U.S. 161, if recovery is to obtain. It is difficult to perceive the distinction. As a matter of fact the *Gavit case*is so directly in point that we have no hesitancy in applying it here. In our opinion the issue is *stare*decisis, and nothing is left for us to do but dismiss the petition. We have not ignored the argument of counsel; on the contrary, we have given it most careful and deliberate attention. With it, however, we can not agree. Decisions of the Supreme Court determinative of an issue precisely the same as the case presented for our adjudication are manifestly conclusive, and it would serve no useful purpose for this court to repeat a discussion and argument which have been effectually closed in this way. Suffice it to say that we are firmly convinced that the *Gavit case*precludes a recovery herein. The petition is dismissed. It is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.