Estate of Lela Barry Vardell, Deceased, First National Bank in Dallas v. Commissioner of Internal Revenue

307 F.2d 688, 10 A.F.T.R.2d (RIA) 6181, 1962 U.S. App. LEXIS 4502

• Court: Court of Appeals for the First Circuit
• Decided: July 11, 1962
• Docket: 19040_1
• Status: Published

Opinions

GRIFFIN B. BELL, Circuit Judge.

This is an estate tax case.¹ It is an appeal by the taxpayer from an adverse decision of the Tax Court. 35 T.C. 50.

Lela Barry Vardell died on September 12, 1955. Her husband, T. W. Vardell, died testate on February 27, 1934. They were domiciled in Texas and all of his property was community property. He put his wife, the decedent here, to an election under his will, either to retain her community one-half interest and receive no part of his estate, or to allow her community one-half interest to be governed by the terms of his will and to receive specified benefits thereunder.²

In the latter event, the husband, by Item Two of his will, bequeathed to his wife all of the community property, which, of course, was only his one-half therein “for the term of her life, and so long as she shall remain a widow, she to have, during such time, full and absolute authority to handle, manage, sell, and in any manner dispose of said properties, or any part thereof, and to invest and re-invest any proceeds received from the sale of any part of said properties «■ * *»

The will then provided that in the event of the remarriage of Mrs. Vardell, all property owned by the husband at the time of his death then remaining undis-posed of together with the proceeds then on hand received from the sale of any part thereof would pass immediately to the trustees named in Item Three of the will. Her interest on the community was expressly excluded from the operation of this clause. Thus, she would lose only the life estate and the power of disposition over the one-half interest in the community owned by her husband, retaining in the event of remarriage a life estate in and the power of disposition over her one-half interest in the community; losing in any event however, the remainder interest in her one-half. Stated differently, Mrs. Vardell exchanged the remainder interest in her one-half of the community for a life estate in the one-half interest of her husband in the community, with the life estate being de-feasible in the event of her remarriage.

Legal title to the remainder interest in the whole of the community passed under the will to Trustees. The beneficiaries under the trust were the two daughters of Mr. and Mrs. Vardell and their lineal descendants.

Decedent elected to take under the will of her husband. A gift tax return was filed by her on the contribution made as a result of the election, and taxes in the amount of $6,617.50 were paid. ³ At the conclusion of the administration of the estate of the husband in 1935 all of the community assets were turned over to decedent and she managed these assets during her lifetime, receiving all of the income therefrom. She never remarried. At her death the remaining community assets passed to the trust under the terms of the will of her husband. At the date decedent elected to take under the will the total value of the whole of the community was $2,304,564.68, attributable, because of taxes and other expenses allocable to the estate of the husband at his death, 53.8% to her interest in the community assets, and 46.16% to the interest of her husband.

The value of the whole of the community property remaining undis-posed of at the time of the death of the widow, valued as of a date one year thereafter, was $3,972,582.99, of which $2,138,-838.68 (53.84%) was attributable to the share of Mrs. Vardell. None of the value of this property was included in the Federal estate tax return filed as being in her gross estate. The Commissioner, in determining the deficiency in estate tax, included the community of Mrs. Vardell in her gross estate and the Tax Court affirmed this action, holding that it was in-eluded under § 2036 of the 1954 Revenue Code, 26 U.S.C.A., § 2036,⁴ stating that the transfer by her to the remainder-men was not completed until her death, It would also have been includible under § 2038 of the Code. 26 U.S.C.A., § 2038.⁵ We would reach the same point taxwise under either or both.⁶

Petitioner took the position before the Tax Court that none of the interest of Mrs. Vardell in the community property was includible because its transfer under the election to which decedent was put constituted a bona fide sale for an adequate and full consideration in money or money’s worth within the meaning of § 2036. Alternatively, if there was less than a full consideration, it was urged that decedent was entitled to a credit under § 2043(a) of the 1954 Revenue Code, 26 U.S.C.A., § 2043(a),⁷ which in effect allows a credit for the amount of the consideration for a transfer, where it is less than full consideration. The gross estate under this section includes only the excess of the fair market value of the property over the value of the consideration received therefor by a decedent where a transfer has been made under §§ 2035 to 2038, inclusive, and § 2041, of Title 26.⁸

The Tax Court disposed of the case by holding the transfer by Mrs. Vardell of her one-half interest in the community to have been incomplete until her death, and that her community was includible in her gross estate under § 2036. This holding was based on the power of disposition vested in Mrs. Var-dell by the terms of the will which rendered the remainder contingent as to property. The law of Texas dictates the type of property interest involved, here a life estate, see Footnote (⁶), supra, and this transaction falls squarely within the terms of § 2036. The Tax Court missed the mark however in failing to apply § 2043(a).

The government concedes that this property, if not includible under § 2033, and we have held that it is not, is includible under § 2036. And we hold, contrary to the contention of the taxpayer, that the transfer was not for a full consideration under § 2036. We put aside any question as to gift tax since it is admitted by the government that the gift tax collected was not due. Nor are we concerned with a valuation of the property transferred by Mrs. Vardell since the very purpose of § 2036 and the related sections is to include all of such property in her gross estate subject to such credits, if any, as may be due.

This brings us to the remaining questions presented. They are: first, whether the transfer was for a consideration within the meaning of § 2043(a); and if so, then second, how the credit is to be computed.

The question regarding consideration under § 2043(a) is of first impression. However, such an exchange has been held to be for a consideration under the gift tax statute. § 1002 of the 1939 Revenue Code, 26 U.S.C.A., § 1002: Commissioner v. Siegel, 9 Cir., 1957, 250 F.2d 339; Chase National Bank, Trustee for Marie Moran v. Commissioner, 25 T.C. 617, reversed on grounds not here applicable sub. nom. Commissioner of Internal Revenue v. Chase Manhattan Bank, 5 Cir., 1958, 259 F.2d 231; and Turman v. Commissioner of Internal Revenue, 1961, 35 T.C. 1123. Section 1002 uses consideration in the same sense as it is used in § 2043(a). Commissioner v. Bristol, 1 Cir., 1941, 121 F.2d 129. We hold that the life estate received by the widow constituted consideration within the purview of § 2043(a). Accord: Restat. Contracts, § 75(1) (c) (d), § 90; Williston on Contracts, Rev. Ed., 1936, § 113; Corbin on Contracts, 1950, § 194.

Having determined that there is consideration as contemplated by § 2043(a), we come to the method and possibility of computation. The Regulation, § 20.-2043-1, provides that the consideration must be reducible to a money value. And the consideration received is to be valued at the time of the transfer, i. e., the date of election. Ithaca Trust Company v. United States, 1929, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647. Once valued, it is to be credited against the value of the property of the widow at the time of her death. The net is what is to be included in the gross estate.

The computation of the value of the consideration received here by the widow is complicated but not made impossible by the remarriage provision in the will of the husband which renders defeasible the life estate transferred to decedent in the event of her remarriage. The Treasury Regulations provide a method of valuation of the life estate. 26 C.F.R., Table A, § 81.10(j), Treasury Regulations 105. Value is a question of fact to be determined by ascertaining in terms of money what the property would bring in the market, subject to such uncertainty as ordinarily attaches to such an inquiry. United States v. Provident Trust Co., 1934, 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793. The hindsight method can be used in arriving at a value. Nourse v. Riddell, D.C.Cal., 1956, 143 F.Supp. 759. This is possible because the credit may not be claimed until after the death of the person receiving the consideration. Then it is known if, and when, she remarried and what sums were paid to her prior to her remarriage.⁹ However, the credit is in no event to exceed the lesser of the amount of the life estate valued as of the date of election and the sums actually received prior to remarriage.¹⁰ This rule will give effect to the intent of Congress that there be a credit for the consideration, and will at the same time limit the credit to the maximum valuation possible as of the date of transfer.

In summary, the gift tax on inter vivos transfers supplements the estate tax on transfers at death. Estate of Sanford v. Commissioner of Internal Revenue, 1939, 308 U.S. 39, 60 S.Ct. 51, 84 L.Ed. 20, but it is undisputed here that the gift tax is inapplicable and that there was a transfer subject to estate tax. The interest that was here transferred by decedent during her lifetime for less than a full consideration was of the § 2036 type to which § 2043(a) applies, as distinguished from being an interest owned at the time of her death under § 2033 to which it does not apply. Our application of § 2043(a) to permit credit for what she received in consideration of the transfer of the remainder in her community as against the value at her death of the property transferred accords with what we deem to be the intent of the applicable statutes, i. e., single taxation and not double taxation as would result if the estate was not credited for the value of the property transferred. Her estate is in no wise depleted for estate tax purposes. Under the computation of the credit what she gave is equal to what she received.

We reverse and remand for such other proceedings as may be necessary and which are not inconsistent herewith.

1 . Jurisdiction is invoked under § 7482 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7482.

2 . There is no issue as to the validity of the election here. The doctrine of election by the surviving spouse where the will deals with the entire community estate is well established under Texas law. Dakan v. Dakan, 1935, 125 Tex. 305, 83 S.W.2d 620; Smith v. Butler, 1892, 85 Tex. 126, 19 S.W. 1083; and 44 Tex.Jur., Wills, § 285 et seq.

3 . The record shows that counsel for Mrs. Vardell advised her at the time that she was not liable for a gift tax. Under the ruling of the Tax Court the estate is entitled to a credit for the gift tax paid. The taxing statute governs and not the erroneous ruling of an internal revenue agent. Technicolor Motion Picture Corp. v. Westover, 9 Cir., 1953, 202 F.2d 224; Chicago Flag & Decorating Company v. United States, 7 Cir., 1941, 119 F.2d 413.

4 . Ҥ 2036. Transfers with retained life estate

“(a) General rule. — The value of the gross estate shall include the value of all property (except real property situated outside of the United States) to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death—

“(1) the possession or enjoyment of, or the right to the income from the property, or

“(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.”

5 . Ҥ 2038. Revocable transfers

“(a) In general. — The value of the gross estate shall include the value of all property (except real property situated outside of the United States)—

“(1) Transfers after June 22, 1936.— To the extent of any interest therein of which the decedent has at any time made a transfer (except in ease of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death.”

Cf. Allen v. Trust Company of Georgia, 5 Cir., 1945, 149 F.2d 120, aff’d 326 U.S. 630, 66 S.Ct. 389, 90 L.Ed. 367.

6 . This matter has proceeded from the beginning on the premise that the whole of the community of Mrs. Yardell was included in her gross estate under § 2036 but respondent now urges us to affirm the judgment of the Tax Court on the basis that the property was includible under § 2033 of the Code rather than under § 2036 as the Tax Court held, a procedure authorized to us where the Tax Court reaches the right decision but for the wrong reason. Helvering v. Gow-ran, 1937, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224. Section 2043(a), the credit statute, infra, does not apply to property included in the gross estate under § 2033 which provides for the inclusion of the value of property of the decedent “to the extent of the interest therein of the decedent at the time of his death.”

But the remainder interest here vested during the lifetime of decedent in the trustees and the life estate and the power of disposition expired with her death. She had no interest within the scope of § 2033. This is so because the transfer, notwithstanding the power of disposition, was of a vested remainder under the Texas law. Uncertainty as to the amount remaining upon the expiration of the life estate does not prevent vesting. Stated differently, the power of disposition did not raise the life estate of the widow to a fee. Caples v. Ward, 1915, 107 Tex. 341, 179 S.W. 856; Edds v. Mitchell, 1945, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470, and the wealth of authorities therein cited. See also Simes and Smith, The Law of Future Interests, 2d Ed., § 1488, p. 378:

“The authorities are overwhelmingly in favor of the proposition that an unlimited power to dispose of the fee or absolute interest when coupled with a life estate does not enlarge the life estate to a fee or absolute interest, and the remainder which follows is valid.”

These life estate authorities are to be distinguished from those authorities concerned with joint and mutual wills holding property interests devised thereunder to the survivor by language substantially as follows to be defeasible or conditional fees:

“[Survivor shall have all property owned by either or both at the time of the demise of the first to die] to be used, occupied, enjoyed, conveyed and expended by, and during the life of such survivor, as such survivor shall desire, [and upon the death of such survivor any of the estate then remaining shall be vested in named persons]”. Tillman v. Mahaffey, Tex.Civ.App., 1952, 252 S.W.2d 255; and Scales v. Scales, 5 Cir., 1962, 297 F.2d 219.

In Phinney v. Kay, 5 Cir., 1960, 275 F.2d 776, involving the estate of a survivor under a joint and mutual will containing similar terms, we held the whole of the community, rather than the one-half taken by the survivor subject to estate tax as a power of appointment under what is now § 2041. No question of a credit under § 2043(a) was involved.

In Ellis v. First National Bank in Dallas, Tex.Civ.App., 1958, 311 S.W.2d 916, the power under the will of the widow here to make a gift of a part of the property, free of the testamentary trust, was upheld, but without reference to the type of estate received by the widow under the will, or transferred by her.

7 . Ҥ 2043. Transfers for insufficient consideration

“(a) In general. — If any one of the transfers, trusts, interests, rights, or powers enumerated and described in sections 2035 to 2038, inclusive, and § 2041 is made, created, exercised, or relinquished for a consideration in money or money’s worth, but is not a bona fide sale for an adequate and full consideration in money or money’s worth, there shall be included in the gross estate only the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent.”

8 . § 2035 — Transfers in contemplation of death

§ 2036 — Transfers with retained life estate

§ 2037 — Transfers with reversionary interest retained

§ 2038 — Revocable transfers

§ 2041 — Powers of appointment

9 . Valuing a life estate, defeasible on re-mara-iage, is not unknown to the Congress. See Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 914(j) wherein the probability of remarriage where lump sum settlements of awards are made is to be determined in accordance with the remarriage tables of the Dutch Royal Insurance Institution.

10 . The value of the life estate received by Mrs. Vardell in the husband’s part of the community assets on the date of election was $454,014.36. During her lifetime she actually received $1,012,272.12 from the life estate.