opinion: BRYANT v. COMMISSIONER OF INTERNAL REVENUE.
  No. 6156.
  United States Court of Appeals. Fourth Circuit.
  Argued Oct. 16, 1950.
  Decided Dec. 8, 1950.
  Joel B. Adams, Asheville, N.C. (Adams & Adams, Asheville, N.C., on brief) for petitioner.
  L. W. Post, Sp. Asst, to the Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Ellis N. Slack, Sp. Asst, to the Atty. Gen., on brief) for respondent.
  Before PARKER, SOPER and DOBIE, Circuit Judges.
  SOPER, Circuit Judge.
  This petition for review relates to a decision of the Tax Court of the United States in which a deficiency of $4-59.40 in the income and victory tax for the year 1943-, and a deficiency of $12221.05 in the income tax for the year 1944 was adjudicated against the petitioner.
  Edith Moorhead Bryant, the taxpayer, was one of the beneficiaries and the remainderman of a trust estate created by the will of S. E. Moorhead, her father, a resident of New Yorle who died in 1941. He bequeathed 2500 shares of stock of Liggett & Myers Tobacco Company to the Guardian Trust Company of New York in trust to pay out of the income therefrom or from the principal, if necessary, $10,000 annually to his wife for her life, and to pay the balance of the income, if any, to his daughter. Upon -the death or remarriage of the widow the trustee was directed to pay over the principal of the trust fund, less statutory commissions, to his daughter.
  The widow died on October 17, 1943, but the estate was not transferred to- the taxpayer until April 3, 1944 when the trustee delivered the entire corpus to the taxpayer. The trustee collected $8857.30 of income in 1943 and $1837.58 of income in 1944. Out of the income for 1943 the trustee paid to the widow before her death and to- her estate after her death the aggregate sum of $7945.20 (less commissions), which represented the -proportionate part of $10,000 due her for the period from January 1 to October 17, 1943. Out of the balance of the income the trustee paid state and federal income taxes on capital gains, expenses incurred in the termination of the ■trust, consisting of trustee’s commissions, attorney’s fees, transfer taxes and express charges, and also paid the trustee’s commissions . on income. These payments amounted in all to $4707.12, leaving only $186.71 remaining in its hands. This sum, together with the corpus, was paid and delivered to the taxpayer on or about April 3, 1944. No- part of the principal or income from the estate was paid to the taxpayer prior to that date.
  An instrument in the form of a receipt, release and indemnification was executed between the Trust Company, the taxpayer and the executors of the esate of the widow, which recited that the taxpayer had paid to the trustees the sum of $4461.81 to enable the trustee to avoid the necessity of liquidating any of the securities of the trust estate for the purpose of paying the income due the estate of the widow and the commissions due the trustee and other termination charges. No- payment, however, was in fact made by the taxpayer to the trustee, but the expenditures referred to were paid solely out of the income as previously stated.
  The Tax Court held that none of the ■ payments made by the Trustee were properly deductible from the income due the taxpayer except the income due the widow for the year 1943, the income taxes due the State of New York, and the trustee’s commissions on income, and that hence the remainder of income in\he trustee’s hands, amounting to the sum of $596.61 for the year 1943 and the sum of $1752.72 for the year 1944 represented income which was currently distributable to the taxpayer. The taxpayer contends that this decision was wrong because she actually received only $186.71 as income from the trust estate in 1943 and 1944, and that only this amount was currently distributable to her within the meaning of Section 162(b) of the Internal Revenue Code, 26 U.S.C.A. § 162(b), which provides in effect that in computing the net income of an estate for income tax purposes, the amount of the income for the taxable year which is to be distributed currently to the beneficiaries may be deducted; but the amount so allowed as a deduction shall be included in computing the net income of the beneficiary whether distributed to them or not.
  The decision of the case is not controlled by the erroneous statement in the agreement of settlement between the trustee and the taxpayer that the taxpayer furnished the funds which enabled the trustee to defray taxes and termination charges without selling any of the corpus of the trust; nor by the fact that the trustee actually used income of the trust to pay these expenses so that the taxpayer received only a small part of the income in the taxable years. The test of taxability is not the receipt of income but the right to receive it. Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634 and the right to receive the income of a trust depends upon the terms of the trust instrument and governing state law. Commissioner v. Lewis, 3 Cir., 141 F.2d 221; Abell v. Tait, 4 Cir., 30 F.2d 54; Ardenghi v. Helvering 2 Cir., 100 F.2d 406, certiorari denied 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1501; United States v. Blosser, 8 Cir., 104 F.2d 119. The Tax Court followed the established rule in New York that only those expenses properly chargeable against income are deductible from income and those expenses chargeable against corpus are deductible from corpus. In re Petremont’s Will, 213 App.Div. 3I8, 210 N.Y.S. 379; affirmed 241 N.Y. 586, 150 N.E. 566; Matter of Eddy’s Will, 207 App.Div. 162, 201 N.Y.S. 760, 761; In re Marvin’s Estate, 135 Misc. 899, 241 N.Y.S. 500; In re Chave’s Estate, 227 App.Div. 554, 238 N.Y.S. 678. The testator’s intention in this respect, as shown by the terms of the will, was in accord with this rule for it expressly directed the trustee at the termination of the trust upon the death of the widow to “deliver the principal of said trust fund or so much thereof as then remains, less statutory commissions” to' his daughter. It therefore became the duty of the trustee at the termination of the trust to pay the capital expenses from the corpus in accordance with the local rule in New York.
  The trustee was of course entitled to a reasonable time in which to settle the trust estate after the death of the widow and in the meantime the trust estate was a taxable entity; Commissioner v. First Trust & D. Co., 2 Cir., 118 F.2d 449; Frederich v. Commissioner, 5 Cir., 145 F.2d 796, 157 A.L.R. 841; but the will contemplated that upon the death of the widow the corpus should belong to the taxpayer and it follows that the income on the corpus thereafter collected by the trustee during the taxable years belonged to and was currently payable to the taxpayer after the widow’s share of the income for 1943 and the expenses attributable to income had been set aside. The amount of these deductions are not disputed in this case.
  In Commissioner v. First Trust & D. Co., supra, upon which the taxpayer depends, the court held that the income was not distributable to the beneficiaries by reason of the terms of the will. In Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670, it was held that in com-pitting the taxable income of a trust which imposed the duty upon the trustee to maintain and administer the estate for a period of twenty-one years, the expenses incurred by the trustee in the distribution of the corpus were deductible as expenses of management; but in that case the court was not considering the tax liability of distributees of income but the fax liability of the-trust estate, and the taxable entity was the estate and not the distributees thereof. Deductions allowable to an es-state are not available to beneficiaries unless the tax statute so provides. Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 77 L.Ed. 1004; New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. In Sitterding v. Commissioner, 4 Cir., 80 F.2d 939, the income of the estate pending the settlement thereof was not payable to the legatees under the will, and the court-found that the amount of the income in the hands of the executor was not enough to pay the state and federal taxes which under the Revenue Act of 1928 were deductible from the gross income of estate. In short it was held that no income taxes were due either by the estate or the legatees. See the comment on this case iii Ardenghi v. Helvering', supra.
  We find nothing in these decisions in conflict with the Tax Court’s decision and it is therefore affirmed.
  . This sum exceeded the amount held by the Commissioner to be distributable to tbe taxpayer in 1944, but since no increased deficiency was requested, the Tax Court accepted the Commissioner’s figure.
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.