This is an appeal from a judgment requiring defendant, as Franchise Tax Commissioner of the State of California, to pay plaintiff the sum of $107.58. This sum represented a claimed overpayment under protest of $48.82, plus $8.84 interest, on plaintiff’s income tax for 1935, and $36, plus $4.36 interest, claimed overpayment on his income tax for 1936, together with $9.56 accrued interest on those amounts.

The facts of the case are not in dispute nor are they involved. Plaintiff and Katherine D. Innes were formerly husband and wife. They had three children. Mrs. Innes was awarded an interlocutory decree of divorce from plaintiff in 1926, and a final decree in 1927. By the decree he was required to pay her $300 per month for the support of herself and their three children, subject to further order of the court. In 1935, or shortly before, differences arose between plaintiff and his former wife over the payment of this money which was adjusted by agreement between the parties.

Under date of May 8, 1935, plaintiff and Mrs. Innes entered into a written contract whereby plaintiff agreed to pay to Murray Innes, Jr., their son, as trustee, the sum of $25,000 in trust, the income, and such of the corpus as might be necessary, to be used to pay Mrs. Innes $200 per month for her support during the balance of her life. Plaintiff retained no control over the trust or the trust funds, nor was he obligated to pay her anything if the trust funds became exhausted during her lifetime. After her death the unexpended balance of the corpus of the trust was to be divided between the children.

The trust agreement contained the following covenants on the part of Mrs. Innes:

Plaintiff paid the $25,000 to Murray Innes, Jr., and concurrently Mrs. Innes executed a satisfaction of judgment, which reads in part as follows:

This was not presented to the superior court which had granted the divorce until 1937. On October 12, 1937, that court struck out the portions of the decree requiring plaintiff to pay Mrs. Innes the support money.

Plaintiff did not include the income from the trust funds in his personal income tax returns for the years 1935 and 1936. After proceedings duly had he was charged with this income and the amount of his tax increased in the amounts already mentioned.

The sole question here for decision is whether the income from the trust funds for the years 1935 and 1936 was properly charged to plaintiff.

The California Personal Income Tax Act [DBering’s Gen. Laws, 1937, Act 8494] in many respects closely follows the provisions of the Federal Income Tax Law. The definitions of gross income are similar in both enactments so we may presume that the California law was adopted with the definition in mind that the federal courts had placed on gross income. (Union Oil Associates v. Johnson, 2 Cal, (2d) 727 [ 32 Pac. (2d) 360 , 43 Pac. (2d) 291 , 98 A. L. R 1499].) Therefore, we will look to the decisions of the federal courts to determine the definition of gross income in cases identical with or similar to the one we have here. The following decisions of the Supreme Court of the United States are determinative of that issue: Gould v. Gould, 245 U. S. 151 [38 Sup. Ct. 53, 62 L. Ed. 211 ] ; Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U. S. 716 [49 Sup. Ct. 499, 73 L. Ed. 918 ] ; United States v. Boston & Maine R. Co., 279 U. S. 732 [49 Sup. Ct. 505, 73 L. Ed. 929 ] ; Douglas v. Willcuts, 296 U. S. 1 [56 Sup. Ct. 59, 80 L. Ed. 3 , 101 A. L. R. 391] ; Helvering v. Fitch, 309 U. S. 149 [60 Sup. Ct. 427, 84 L. Ed. 665 ] ; Helvering v. Clifford, 309 U. S. 331 [60 Sup. Ct. 554, 84 L. Ed. 788 ] ; Helvering v. Fuller, 310 U. S. 69 [60 Sup. Ct. 784, 84 L. Ed. 1082 ] ; Helvering v. Leonard, 310 U. S. 80 [60 Sup. Ct. 780, 84 L. Ed. 1087 ].

These decisions establish two rules of law that must be controlling here. They are: Where the income from the trust fund is paid to the wife to discharge a continuing obligation of the husband to the wife the income from the trust is gross income of the husband and is chargeable and taxable to him. Where the corpus of the trust is transferred by the husband to the trustee without any reserved rights over or in it and is a present and full discharge of all present or future obligations to pay the wife anything and there is no existing valid court order requiring future payments by the husband to the wife for her support the income from the trust is gross income of the wife and is not chargeable to the husband and he is not required to pay any income tax upon it. We must apply those rules to the facts of the instant ease under the law in California to determine the correctness of the assessment of the income of the trust to plaintiff.

Of course as between plaintiff and his divorced wife the documents they executed on May 8, 1935, and the payment of $25,000 into the trust fund, constituted a complete release by the wife of the obligation of the husband to support her insofar as that result could have been accomplished by a contract between them. Had the wife, by execution or otherwise, obtained further money from the plaintiff under the support provisions of the divorce decree it is probable that the plaintiff would have had his remedy against her for the damages suffered, recoverable in an action for breach of contract. But this does not settle the question we have here. The really important question is the obligation of the superior court to modify the decree of divorce by striking from it the provisions for the payment of support money by plaintiff to his former wife in accordance with their agreement. One of the children was a minor of the age of twenty years on May 8, 1935. Of course the mother could not legally release plaintiff from his obligation to support this son during his minority. As the parties do not argue this question we will give it no further consideration.

Section 139 of the Civil Code gives the superior court power to require a husband to provide support for his divorced wife and the children of the marriage and from time to time to modify such orders for support where a divorce is granted for an offense of the husband. In Johnson v. Johnson, 104 Cal. App. 283 [ 285 Pac. 902 ], it is said:

It would therefore seem clear that the superior court was not required by law to modify the divorce decree in accordance with the stipulation but was vested by the law of the state with a discretion empowering it to decide the question of the modification of the decree independent of and contrary to the agreement of the parties. This being true, it follows, as the divorce decree was not modified until after December 31, 1936, the last day of the last tax year in question here, that during the years of 1935 and 1936 there remained in full force and effect a decree of court requiring plaintiff to pay his former wife three hundred dollars per month, which on the face of the decree created a valid and binding obligation on the part of plaintiff to pay Mrs. Innes this money until that decree was modified by order of court.

Under the authorities already cited, we must hold that the income from the trust fund was used to satisfy this obli gation and was chargeable to plaintiff. It follows that the Franchise Tax Commissioner properly assessed the income from the trust fund to plaintiff and collected the taxes on that income from him, and that he cannot recover them.

The judgment is reversed.

Barnard, P. J., and West, J. pro tem., concurred.