The Commissioner of Internal Revenue determined deficiencies in income taxes for the years 1927 to 1929 upon the ground that respondent was taxable as an association. The decision of the Board of Tax Appeals, sustaining this ruling, was reversed by the Circuit Court of Appeals. Coleman-Gilbert Associates v. Commissioner, 76 F.(2d) 191. In view of the conflict of decisions as to the test to be applied, we granted certiorari. Helvering v. Coleman-Gilbert Associates, 296 U.S. 555, 56 S.Ct. 91, 80 L.Ed. 392. See Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263, decided this day.
From the facts, as found by the Board of Tax Appeals, it appears that respondent was formed by an indenture of trust in November, 1926. The creators of the trust were Harry Coleman, pauline Coleman, Bernard Gilbert, Harris Levine, and Lena Levine. They were co-owners of real property consisting of about twenty apartment houses in the city of Boston and vicinity.
The property had originally been owned by Harry Coleman, Bernard Gilbert, and Harris Levine in equal shares, but subsequently Coleman and Levine transferred to their wives one-half of their interests. These five persons had for some time been associated in the business of owning and operating apartment houses. By the trust instrument, which recited a contemporaneous conveyance of the property to themselves, they declared that the real estate so conveyed, and any real estate thereafter acquired under the trust, should be held by them in trust for the purposes described, with the designation 'Coleman-Gilbert Associates.' The trust was to continue for fifteen years unless sooner terminated by sale and distribution of the trust estate. The trustees were to hold the property in order to improve and dispose of it for the benefit of the persons named as 'cestuis que trustent and beneficiaries, and their respective representatives and assigns, devisees, or legatees' in the shares provided in the instrument. Except as stated, the beneficiaries were to have no interest in the trust property, and 'especially' they were to have 'no right to call for any partition thereof.' The interests of the beneficiaries were to be personal property, and the death of any one or of all the beneficiaries was not to determine the trust nor entitle the legal representatives of the decedent to an accounting by the trustees.
The trustees were to have the 'full power and discretion' of absolute owners, with authority to invest and reinvest the trust property, including its income, in mortgages or in obligations secured upon real estate, and 'in the purchase and improvement of real estate situated in the cities or towns of the commonwealth of Massachusetts.' The trustees were authorized to sell at public or private sale any part or all of the trust property upon such terms as they might see fit,' to improve, to lease for a term beyond the possible termination' of the trust, of for any less term, 'to hire for improvement or otherwise, to let, to exchange, to release, to partition,' to borrow money, and to execute all necessary contracts. Funds in the possession of the trustees, being 'the proceeds of sales or otherwise,' or net income, which was 'not required in their judgment for development or improvement of the trust property,' were to be divided and paid over annually, or oftener, if convenient, equally among the said beneficiaries and their respective representatives and assigns in the proportions stated. The trustees were to have no power to bind the beneficiaries personally, and the trustees were to be responsible only for willful default and breach of trust. There was also provision for the resignation of trustees, and in case of death or resignation of a trustee, the surviving trustees were to appoint successors, and if they failed to do so, the beneficiaries were to have the right of appointment.