opinion: BOSTON SAFE DEPOSIT AND TRUST COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
  No. 6318.
  United States Court of Appeals First Circuit.
  Heard Oct. 5, 1964.
  Decided April 22, 1965.
  Paul B. Sargent, Boston, Mass., for petitioner.
  William A. Friedlander, Atty., Dept, of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, were on brief, for respondent.
  Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
  HARTIGAN, Senior Circuit Judge
  (by designation). This is a petition to review a decision of the Tax Court entered January 23, 1964, determining a deficiency in the petitioner’s payment of federal estate tax in the amount of $2,-270.57.
  Petitioner, Boston Safe Deposit and Trust Company, is executor under the will of the decedent, Albert L. Rice, who died on September 2, 1959, survived by his wife, Martha C. Rice, and two daughters. Letters testamentary were granted to petitioner on October 28, 1959, by the Probate Court of Norfolk County, Massachusetts.
  By the terms of his will, which was executed December 30,1958, the decedent bequeathed and devised all his property to his wife, provided she survived him for thirty days; otherwise to his two daughters equally. On December 30, 1958, decedent also executed an amendable and revocable indenture of trust designating petitioner as trustee and transferring certain property to petitioner as trustee.
  The trust instrument provided that the trustee should pay over to the donor during his lifetime any income of the trust and also such amount of principal as the donor might from time to time request. It further provided that at the death of the donor, if his wife should survive him, the trustee should set aside as a separate trust fund, to be known as “Trust A”, a sum equal to one-half the value of the donor’s “adjusted gross estate” as defined in the Internal Revenue Code of 1954, such sum to be reduced, however, by the value as finally determined for federal estate tax purposes of all other property passing to the donor’s wife under the provisions of his will or by operation of law or otherwise, and qualifying for the marital deduction. The trustee was directed to pay the entire net income from Trust A to Martha C. Rice during her lifetime, and as well to pay to her or for her benefit such amounts of principal as the trustee in its sole discretion might deem necessary or advisable for her comfort, maintenance, and support. It was provided that upon her death the trustee should pay the entire remaining principal of Trust A to or for such person or persons as Martha C. Rice might by her will direct and appoint, such power including the right in her to appoint to her own estate. It was further provided that in default of any such appointment, the remaining trust principal should be added to and consolidated with a second trust created by the same indenture and designated “Trust B.”
  The trust indenture provided that the balance of the trust estate, or all thereof if the donor’s wife should not survive him, should be retained by the trustee as Trust B. The trustee was directed to pay to Martha C. Rice during her life the net income from Trust B and so much of the principal thereof as the trustee might from time to time deem necessary or advisable for her comfort, maintenance, and support. It was further provided that upon the death of the survivor of the donor and his wife, the beneficiaries of the income and principal of the trust were to be the children and grandchildren of the donor.
  Article Ninth of the trust instrument gave the trustee absolute discretion to pay all inheritance and estate taxes out of Trust B. The trust also provided that it was to be construed according to Massachusetts law. Decedent’s will made no provision as to payment of taxes.
  Acting pursuant to the provisions of Article Ninth of the trust indenture, petitioner, as executor, requisitioned from itself, as trustee, from Trust B, an amount sufficient to pay the Massachusetts inheritance tax and the federal estate tax. An estate tax return was filed by petitioner with the District Director of Internal Revenue for the District of Massachusetts on December 2, 1960. Therein a marital deduction was claimed in the total amount of $145,134.15, composed of $122,223.02 representing the value of the property in Trust A, and $22,911.13 representing the value of other property included in the gross estate and passing to the widow. In computing the claimed marital deduction petitioner did not reduce the value of any of these properties by any portion of the Massachusetts inheritance tax or the federal estate tax paid.
  In the notice of deficiency the Commissioner determined that in computing the marital deduction, the property interests passing to the surviving spouse under Trust A should have been reduced by the Massachusetts inheritance tax and the federal estate tax allocable to those property interests, in the amount of $6,680.07.
  The only question raised by this petition, then, is whether the Commissioner was correct in reducing the size of the marital deduction by $6,680.07, the portion of the federal estate tax and Massachusetts inheritance tax which, at the time of decedent's death, was allocable to those property interests in decedent’s estate qualifying for the marital deduction.
  The first part of petitioner’s argument is that the trust instrument evidences an intention that decedent’s widow was to receive the entire amount of Trust A tax-free; that in any event all the taxes were paid out of Trust B; and that the size of the marital deduction should therefore not be reduced by the amount of any of the taxes. Petitioner relies on sub-section 2056(b) (4) (A) of the Internal Revenue Code of 1954, asserting that the provisions of that subsection require us to recognize petitioner’s exercise of discretion as an “effect” within the meaning of the statute. The trouble with petitioner’s argument is that, in determining the “effect” of death taxes, we must place ourselves in time squarely at the moment of the decedent’s death. Treas.Reg. § 20.2056(b)-(4) (a), (c) (1) (1961). See Jackson v. United States, 376 U.S. 503, 508, 84 S.Ct. 869, 11 L.E.2d 871 (1964) (dictum); Starrett v. Commissioner of Internal Revenue, 223 F.2d 163 (1st Cir. 1955); Ballantine v. Tomlinson, 293 F.2d 311 (5th Cir. 1961). At that moment a proportionate amount of tax was owing and payable out of Trust A and the other property interests qualifying for the marital deduction, and that fact is conclusive. No amount of “intention” can alter the result, and any actual exercise of discretion is irrelevant since it comes after the decedent’s death.
  Petitioner is not helped, with regard to the federal estate tax, by provisions of a Massachusetts statute cited by it. Petitioner would construe that statute (specifically, “except as otherwise provided or directed”) as removing the tax liability from Trust A to Trust B by including a discretionary provision within the scope of “otherwise provided.” That argument, however, must assume an actual exercise of discretion since the statute certainly could have no eifect were the discretion to remain unexercised (the trustee’s discretion is absolute). And in making that assumption, petitioner once again is asking us to look to future events. That we have said we cannot do.
  Also, petitioner’s argument based on the Massachusetts statute’s definition of “net estate,” as not including “deductions” and therefore not including any part of Trust A in the taxable estate must fail. The argument assumes the issue, already decided against petitioner, that Trust A for the purpose of the marital deduction is not to be diminished by a proportionate amount of tax.
  Judgment will be entered vacating the decision of the Tax Court and remanding the case to that court for entry of decision in accordance herewith.
  . “Article Ninth: Notwithstanding any other provision hereof, on the death of the Donor, the Trustee may in its discretion pay to the Executor of his will or to the Administrator of his estate such sum or sums from Trust B as such Executor or Administrator shall in writing request for the payment of legacies, debts, expenses of administration, and of legacy, succession, inheritance and estate taxes, or other death duties, or to reimburse such Executor or Administrator for the making of any such payments or may pay any of such taxes directly to the taxing authorities involved; * * * and the determination of the Trustee as to whether to make any such payments and as to the amount of any such payment made shall be final and binding upon all persons taking any interest hereunder.”
  . It is stipulated by the parties that the Tax Court’s figure, $3,331.90, was a mathematical error and that the figure of $6,680.07 is the correct one. The case must in any event be remanded for correction of that error.
  . “(4) Valuation of interest passing to surviving spouse. — In determining for purposes of subsection (a) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this section—
  “(A) there shall be taken into account the effect which the tax imposed by section 2001, or any estate, succession, legacy, or inheritance tax, has on the net value to the surviving spouse of such interest;
  « * » *»
  . “Whenever it appears upon any accounting, or in any appropriate action or proceeding, that an executor, administrator, trustee or other person acting in a fiduciary capacity, has paid or may be required to pay an estate tax levied or assessed under the provisions of this chapter, or under the provisions of any estate tax law of the United States heretofore or hereafter enacted, upon the transfer of the estate of any person who at the time of his death was an inhabitant of this commonwealth, the net amount of said tax shall be apportioned among and borne by recipients and beneficiaries of the property and interests included in the gross estate in the following manner:—
  :¡: # % * *
  “2. If any portion of the property with respect to which such tax is levied or assessed is held under the terms of any trust created intervivos * * *, such proportion of the net amount of the tax so levied or assessed shall, except as otherwise provided or directed by the trust instrument with respect to the fund established thereby, or by the decedent’s will, be charged to and paid from the corpus of the trust property * * * as the net amount of the property of such trust * * * and included in the measure of such tax bears to the amount of the net estate as hereafter defined in this section. The amount so charged shall not be apportioned between temporary and remainder estates.” 2A Mass.Gen. Laws Ann. ch. 65A § 5 (1953).
  . “The term ‘net estate’ as used in this section shall mean the gross estate as defined by the applicable estate tax laws of the United States less the deductions, other than specific exemptions, allowed by the provisions of such laws.” Id.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.