The Commissioner of Internal Revenue has appealed to this Court to reverse a decision of the United States Tax Court which redetermined a tax deficiency on the estate of Fannie Bomash (hereinafter referred to as “Fannie”).

*310 In 1942 Fannie’s husband, Louis Bomash, died. Louis’s will set up a testamentary trust composed entirely of community property. By the terms of the will, 50% of the trust income was payable to Fannie for life and the remainder payable to various offspring. Roughly one-half of the trust corpus consisted of Fannie’s one-half share of the community property and the other half of the corpus was Louis’s share of the community property.

Fannie’s share was placed into the trust by means of an endorsement to Louis’s will in which she acquiesced in his disposition of the community property. Fannie’s election to take under her husband’s will rather than her statutory share was found by the Tax Court to constitute a “transfer” of property within the meaning of Section 2036(a) Title 26 U.S.C. 1 [transfers with retained life estate]. Although the appellee argued the contrary position in the Tax Court, it has not cross-appealed from that part of the Tax Court’s decision finding a “transfer”.

Under the laws then in effect (1942), all of the community property was taxed to Louis’s estate when he died.

When Fannie died, however, her estate tax return included only income accrued to her and failed to include any portion of the trust corpus. In a notice of deficiency the Commissioner held that 50% of the corpus was includable under Section 2036.

The Tax Court held that only 25% of the corpus should have been included. The Tax Court reasoned in its published opinion:

This is the heart of the Tax Court decision. Its reliance on the Tornee case is very puzzling. In Tornee an inter vivos trust was established to provide a $10,000 annual income for the settlor’s children. Under the language of the trust, if a child (one of four children) of the settlor and all of the children of that particular child should predecease the settlor, then $2500 (one-fourth of the trust income) would be added to the corpus. Holding that the trust transfer was not a transfer for the benefit of the decedent (and thus not invoking the effect of § 2036), the Tax Court said:

Aside from attempting to extend the Tornee case to a situation in which the deceased taxpayer allegedly intermingled all of the subject property passing to the trust corpus, the Tax Court also departed without explanation from its sound decision in Estate of Gregory, 39 T.C. 1012 , in deciding the instant case.

*311 In Gregory the husband left his portion of the community property to a testamentary trust to which his widow transferred her one-half of the community property. Contrasted with the Bomash will, the Gregory instrument gave the widow the right to a life estate in all of the net income which arose from the trust estate. The Gregory taxpayer attacked the Commissioner’s determination that the widow made a transfer with a retained life estate within the scope of Section 2036(a) (1) on the grounds that Section 2036 was inapplicable because Mrs. Gregory derived a life estate composed of not only her former property, but also that of her husband.

Finding the taxpayer’s argument to be without merit, the Tax Court in Gregory held:

The reasoning of the Gregory ease applies a fortiori to our case in which the widow did not retain a life estate in 100% of the trust income. The retention of 50% income from the entire trust corpus (which includes Fannie Bomash’s half contribution) is identical in substance to a retained 100% income life estate in her own one-half of the community property. The objective economic reality of this ease is the fact that Mrs. Bomash did not alter her position by placing her community property share in trust. We are guided by the Supreme Court’s caution in United States v. Grace’s Estate, 395 U.S. 316 , 89 S.Ct. 1730 , 23 L.Ed.2d 332 (1968) that “the law searches out the reality and is not concerned with the form”. Most importantly, we heed the Grace Court’s clear rule that “the taxability of a trust corpus * * * does not hinge on a settlor’s motives, but depends on the nature and operative effect of the trust transfer” 2

Since the record demonstrates that (in the words of’Grace) Mrs. Bomash’s “effective position * * * vis-a-vis the property did not change at all” when the trust was established, it was error for the Tax Court to conclude that the Bomash estate should not have been taxed on 50% of the entire trust corpus.

The appellee contends that because the Government taxed Louis’s estate for all the community property in 1942, Fannie’s estate cannot now be taxed for one-half of that same property.

The appellee argues:

As a result, appellee continues, in the absence of joint ownership the property interest in any portion of the community cannot belong to two separate persons at the same time.

This argument misconceives the estate tax scheme. A similar theory was rejected by the Third Circuit in Hornor’s Estate v. C.I.R., 305 F.2d 769, 772 (1962) which considered an attack on *312 § 811(c) of the 1939 Code — the predecessor of the current § 2036.

The Hornor court held that “there is no requirement in this section that a decedent have had at one time or other complete ownership or ‘unfettered control’ over property before it can be included in the decedent’s gross estate * * ”

Significantly, the Hornor case dealt with a fact situation almost identical to the circumstances in our case — property of husband and wife was included in Mr. Hornor’s estate at the time of his death, and one-half of that property was included in his widow’s estate at her earthly departure.

The appellee further argues without authority that since the entire community was taxed in Louis’s estate, then Fannie should be treated in the same manner “as a surviving spouse in a common law state” because this “contravenes uniformity in the laying of excise taxes which the Constitution commands”.

This is without merit. As pointed out by the Commissioner, the Supreme Court stated in Fernandez v. Wiener, 326 U.S. 340 , 359, 66 S.Ct. 178, 188 , 90 L.Ed. 116 (1945):

There is an additional issue raised for the first time on appeal by the appellee — § 2036 is unconstitutional because of “lack of uniformity and equal protection under the Fourteenth Amendment”.

The Supreme Court in Morley Const. Co. v. Maryland Casualty Co., 300 U.S. 185 , 57 S.Ct. 325 , 81 L.Ed. 593 (1937) held:

The constitutional question raised by appellee does not appear in the record before us and should not be considered on appeal.

One final point needs to be made. The Tax Court used the term “intermingled” in describing the manner in which Louis’s and Fannie’s share were included in the trust corpus.

In the California law of community property the word “commingled” has been used interchangeably by state courts with the word “intermingled”. See generally 10 Cal.Jur.2d § 35.

The words themselves are considered as words of art to connote the mixture of separate property or funds with community property or funds. Under the well-established rule as stated in the case of Grolemund v. Cafferata, 17 Cal.2d 679 , 111 P.2d 641 (1941) a presumption arises that all of the mixed property is community property in the absence of other evidence.

In our case there was no separate property contributed by either Louis or Fannie to the trust.

If the Tax Court used the word “intermingled” (in the sense of the meaning it has acquired under California law) to imply that the separate contributions of Louis and Fannie could not be ascertained once they entered the trust, it is clearly wrong. By reference to the trust instrument itself, the shares could have been divided and returned to the respective husband and wife parties.

For the Tax Court to conclude that because the property that “composed the trust was intermingled” so that “it constituted a total trust estate and not divisible parts" is to flee from the reality of the financial arrangement set up by the trust.

The decision of the Tax Court is reversed; the Commissioner’s determination that the tax return of the Fannie *313 Bomash estate was deficient, in that the return did not include 50% of the corpus of the testamentary trust activated by the will of Louis Bomash, is ordered reinstated in full in a revised Tax Court Judgment.

. Section 2036 “Transfers with retained life estate” provides in subsection “a” that:

. United States v. Grace’s Estate, supra, at 323, 89 S.Ct. at 1734 [quoting from Estate of Spiegel v. Commr., 335 U.S. 701, 709 , 69 S.Ct. 301 , 93 L.Ed. 330 (1949)] (emphasis supplied).