I dissent.

Mrs. Cooke filed two income tax returns for the year 1942, one a fiduciary and the other an individual return. In each she reported the capital gain here involved and in each she disputed any liability. However, she paid the tax computed thereon. The tax was computed against her individually and as life tenant. Thereafter, she filed with the Commissioner a claim for refund. The claim being disallowed, the instant actions were instituted.

The majority hold that the instrument under which Mrs. Cooke received the property did not create a trust since she was not as trustee required to conserve it “ ‘as customarily required under ordinary rules applied in chancery and probate courts.’ ” The sweeping provisions of the agreement, emphasized by the majority, vested in her ownership and control and removed it from an “ordinary trust”. In addition to the provisions pointed out by the majority, she had during her lifetime “ ‘the right to use all income therefrom’ ” and “ ‘my wife shall have full authority to sell, transfer and exchange said property * * * and to exercise all rights and powers of ownership with respect thereto’ ”.

The burden was on Mrs. Cooke to establish her right to the refund. If she was liable for the tax upon any theory, she may not recover. I am satisfied that she is liable for the tax resulting from the capital gain as the owner thereof. Capital gain is treated as income for the purpose of taxation. Mrs. Cooke had the absolute right of disposition of the income. It was subject to her unfettered command and she was free to enjoy it at her own option. Taxation of net in *671 come does not depend upon whether the owner saves, spends or gives it away. 1

I would reverse the judgments in these actions.

. Corliss v. Bowers, 281 U.S. 376 , 50 S.Ct. 336 , 74 L.Ed. 916 ; Musselman Hub-Brake Co. v. Commissioner of Internal Revenue, 6 Cir., 139 F.2d 65 ; Hogle v. Commissioner of Internal Revenue, 10 Cir., 132 F.2d 66, 71 .