[613]*613OPINION.
Goodeich:
This proceeding is for the redetermination of a deficiency in estate tax of $9,661.04. Petitioner also challenges the validity of the original assessment of estate tax in the amount of $71,914.58, which it has heretofore paid under protest.
The following stipulation was filed:
(1) It Is hereby stipulated by and between the parties in the above-entitled action that the following facts are admitted and need not be proved.
(2) The petitioner is the First National Bank of Boston as Administrator of the Estate of Sir John Joseph Garvan. The legal residence of the decedent, Sir John Joseph Garvan, at the time of his death and at the time he made the transfers set forth in paragraph 4 infra was Sydney, New South Wales, Australia. The decedent at the time of his death and at the time he made these transfers was not engaged in any business in the United States. His death occurred on July 18, 1927, and on May 24, 1928, the First National Bank of Boston, a corporation duly organized Under the laws of the United States and having a usual place of business in Boston, Massachusetts, was appointed administrator of said Estate with the will annexed by the Probate Court of Suffolk County, Massachusetts.
(8) The gross estate of the decedent within the United States if as a matter of law said property may be included in determining gross estate situated within the United States (not including certain property which he transferred prior to his death, a list of which is set forth in Schedule B infra, and the value of which the Commissioner of Internal Revenue included in the gross estate of the decedent within the United States) consisted of the following securities at the. values shown in the last column.
Schedule A
E'air Market Value at Date of Death
Item
1. 2,800 shs. Swift International-$51, 750. 00
2. 4,102 “ Swift & Company-480, 959. 50
3. 798 “ Libby, McNeil & Libby-’ 6, 783.00
4. 983 “ National Leather Co-2,915. 63
5. $57,000 — Dominion of Canada 5s 1952_ 59, 850. 00
Interest on above-609. 58
6. $38,000 — Dominion of Canada 5%s 1934. 39, 282. 50
Interest on above-447. 03
7. $50,000 — Province of Ontario 6s 1943— 55, 625. 00
Interest on above-1, 025.00
8. $33,000 — Province of Ontario 5s 1948— 33, 825. 00
Interest on above-426. 25
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Total_ 733,498.49
At the time of the decedent’s death the securities set out in said Schedule A were held by the said bank; they were not at that time and never had been hypothecated or pledged as security for any debt or obligation nor were they employed in whole or in part in any business carried on in the United States; they were held by said bank solely for the purpose of collection of the income therefrom for the account of the decedent.
[614]*614(4)Ob or about October 26, 1926, tbe decedent transferred by gift outright to his brothers and sisters four identical lots of personal property, the value of all of which the Commissioner of Internal Revenue included in the gross estate of the decedent within the United States under the provisions of the Revenue Act of 1926 for purposes of the Federal Estate Tax. The detailed items contained in each of the four lots are as follows:
Schedule) B.
E'air Market Value at Date of Death
Item
1. 970 shs. Swift & Company_ $113, 732. 50
2. 600 “ Swift International_ 13, 500. 00
S.190 “ Libby, McNeil & Libby_ 1, 615.00
4. 230 “ National Leather Co_ 718. 75
5. $15,000 — Dominion of Canada 5s 1952. 15,750. 00
Interest on above_ 160.42
6. $2,500 — Dominion of Canada 5%s 1934. 2, 584.38
Interest on above_ 29.41
7. $12,000 — Province of Ontario 6s 1943-13, 350. 00
Interest on above_ 244.00
8. $8,000 — Province of Ontario 5s 1948-8,200.00
Interest on above_ 102. 22
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Total__$169, 986. 68
At the time of said transfer on or about October 26, 1926, the securities set out in Schedule B were held by said bank; from the time of said transfer to the date of death of the decedent they were held by the National City Bank of New York; they were not at any time either before or after said transfer hypothecated or pledged as security for any debt or obligation nor were they employed in whole or in part in any business carried on in the United States; they were held by said banks solely for the purpose of collection of the income therefrom for the account of the decedent prior to said transfer and thereafter for the account of the transferees.
(5)The Commissioner of Internal Revenue has determined the value of the gross estate within the United States to be $1,413,445.21, the details being as follows:
4 times $169,986.68 (total of Schedule B) equals_ $679,946.72
Total of Schedule A above_ 733, 498. 49
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Grand total_$1,413,445. 21
(6) These four transfers were gifts and were made without an adequate and full consideration in money or money’s worth. The petitioner does not admit that these transfers were made in contemplation of death.
(7) All of the bonds included in Schedule A supra were physically present in the United States at the time of the decedent’s death. All of the bonds included in Schedule B supra were physically present in the United States at the time the transfers were made. All the certificates of the shares of stock in Schedule A were physically present in the United States at the time of the decendent’s death. All the certificates of the shares of stock included in Schedule B were physically present in the United States at the time the transfers were made.
[615]*615(8) Compañía Swift Internacional (Swift International) is a corporation organized under the laws of the Argentine Republic.
(9) There was no property of the decedent in the United States at the time of his death, other than as listed in Schedules A and B herein.
(10) None of the bonds included in Schedule A or in Schedule B was secured by any interest in real estate situate within the United States.
(11) The value of the decedent’s gross estate situated outside of the United States was $765,314.49. The amount of the gross deductions from the decedent’s estate (Item 4, Schedule M, Federal Estate Tax Return) was $29,999.53.
(12) Either party may introduce further evidence on any of the matters in issue in this case which is not inconsistent with the facts herein stipulated.
Later an additional stipulation was filed presenting a table of the mortality statistics contained in the 29th annual report of the Bureau of the Census, the relevancy and materiality of which is denied by respondent, and showing that a tax of $'71,914.58 disclosed by petitioner’s estate-tax. return filed on May 17, 1928, was paid under protest on the same date.
It is further agreed upon the record that Swift International owned no property within the United States; that Swift & Company, Libby, McNeil & Libby, and National Leather Company are domestic corporations; and that Dominion of Canada bonds and bonds of the Province of Ontario are bonds of a foreign government, not secured by property within the United States.
Petitioner’s allegations of error amount to a contention that, because decedent was a nonresident alien, his estate can not be subjected to an estate tax by the United States. Specifically, it alleges that respondent erred in including in the estate for purposes of taxation:
(1) shares of stock of a foreign corporation, and bonds of foreign governments ;
(2) shares of stocks of domestic corporations;
(3) property transferred by decedent by gift, after the effective date of the Revenue Act of 1926 and within two years prior to his death.
Petitioner also alleges that respondent failed to allow as deductions in determining the net estate subject to tax, miscellaneous administration expenses. Such expenses should be allowed on the basis of gross deductions of $29,999.53 in determining the net estate subject to tax in accordance with the stipulation entered into between the petitioner and the respondent.
The provisions of the Bevenue Act of 1926 pertinent to the issues here read in part as follows:
Sec. 301. (a) * * * a tax * * * is hereby imposed upon the transfer of the net estate of every decedent dying after the enactment of this Act, whether a resident or nonresident of the United States.
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[616]*616Sec. S02. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
(a) To the extent of the interest therein of the decedent at the time of his death;
* * * * * * *
(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, • in contemplation of or intended to take effect in possession or enjoyment at or after his death, except in case of a bona flde sale for an adequate and full consideration in money or money’s worth. Where within two years prior to his death but after the enactment of this Act and without such a consideration the decedent has made a transfer or transfers, by trust or otherwise, of any of his property, or an interest therein, not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death, and the value or aggregate value, at the time of such death, of the property or interest so transferred to any one person is in excess of $5,000, then, to the extent of such excess, such transfer or transfers shall be deemed and held to have been made in contemplation of death within the meaning of this title. Any transfer of a material part of his property in the nature of a final dispo'sition or distribution thereof, made by the decedent within two years prior to his death but' prior to the enactment of this Act, without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title;
* * * * * * *
Sec. 303. (d) For the purposes of this title, stock in a domestic corporation owned and held by a nonresident decedent shall be deemed property within the United States, and any property of which the decedent has made a transfer, by trust or otherwise, within the meaning of subdivision (c) or (d) of section 302, shall be deemed to be situated in the United States, if so situated either at the time of the transfer, or at the time of the decedent’s death.
We have previously held that bonds of a foreign government and shares of stock of a foreign corporation owned by the estate of a nonresident decedent, the paper evidences of which were held in this country for certain restricted purposes, as in the case now at bar, may not be included in determining the value of decedent’s estate situated in the United States. Ernest Brooks et al., 22 B. T. A. 71. That case arose under the Revenue Act of 1924, the pertinent provisions of which are not materially different from those of the 1926 Act above quoted. Following that decision, we reverse respondent’s action in including in decedent’s estate the bonds of foreign governments and the shares of stock of a foreign corporation. See also Shenton v. United States, 53 Fed. (2d) 249.
But, as pointed out in the Brooks case, in determining the net estate of a nonresident decedent, section 303 (d) provides that stock of a domestic corporation shall be deemed property within the United States. There is no ambiguity in this statutory provision and it is conceded that the taxability of the shares of stocks of domestic corporations here involved depends squarely upon it. [617]*617Petitioner, urges that such stock was situated outside the United States and, under the rule mobilia seqmintur personam, had a situs at the domicile of the owner and contends that so much of section 303 (d) of the Revenue Act of 1926 as operates to tax stock in domestic corporations owned by a nonresident decedent is in conflict with the due process clause of the Fifth Amendment and unconstitutional.
In support of this contention our attention is called to certain recent cases in which the Supreme Court has applied the rule mobilia seqwuntur personam in fixing the situs of intangible property at the domicile of the owner for the purpose of taxation. Farmers’ Loan & Trust Co. v. Minnesota, 280 U. S., 204; Baldwin v. Missouri, 281 U. S. 586; Beidler v. South Carolina, 282 U. S. 1; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69; First National Bank of Boston v. State of Maine, 284 U. S. 312. All of these cases arose under the Fourteenth Amendment and, we believe, are not controlling where the power of Congress to tax is considered. These decisions indicate that the underlying reason for the application of the rule to intangibles, as between the States, is to prevent the injustice of double taxation, but this does not apply necessarily, nor has it been held to apply, where the Federal Government imposes a tax. Generally, both the Federal and State Government may tax the same object or the same transfer at the same time, and the taxation by the one is not a limitation upon the taxation by the other. See Frick v. Pennsylvania, 268 U. S. 473.
The Fourteenth Amendment is a limitation on the power of the States to tax, but the Fifth Amendment under which the issue here arises is not a limitation upon the taxing power of the Federal Government: McCray v. United States, 195 U. S. 27; Billings v. United States, 232 U. S. 261; Flint v. Stone Tracy Co., 220 U. S. 107; Brushaber v. Union Pacific Railroad Co., 240 U. S. 1, unless the exercise of the taxing power is so unreasonable and arbitrary as to amount to a confiscation rather than a tax. Brushaber v. Union Pacific Railroad Co., supra; Nichols v. Coolidge, 274 U. S. 531; Blodgett v. Holden, 275 U. S. 142; 276 U. S. 594; Untermyer v. Anderson, 276 U. S. 440. For this Board, the clear and definite statutory instruction is stronger authority than the urged analogy and possible application to this case, arising under the Fifth Amendment, of the recent decisions of the Supreme Court invoking and applying the mobilia doctrine to cases arising under the Fourteenth Amendment. Here, Congress has expressed a clear intention to tax and if that intention is not consistent with the rule mobilia sequuntur personam, we must assume that Congress intended to repeal the rule in so far as it is in conflict. Cf. In re Whiting’s Estate, 44 N. E. 715.
Petitioner has failed to indubitably demonstrate to us that this statute infringes the constitutional guarantees which he invokes; [618]*618that the tax here imposed is so arbitrary or unreasonable as to cause us to disregard or reject the explicit provision of the statute under which it is laid. As said by Judge L. Hand in Cohan v. Commissioner, 39 Fed. (2d) 540, at page 545:
* * * limitations like the Fifth Amendment are not like sailing rules or traffic ordinances; they do not circumscribe the actions of Congress by metes and bounds. * * * So it does not seem to us that the situation here calls for so heroic a remedy as to declare the statute unconstitutional, nor indeed, for the lesser one of wringing the words out of their natural meaning. * * * while colloquial language is a fumbling means of expression, there are .limits to its elasticity; to deny the application of these words to the case at' bar seems to us to pass the point of rupture.
Bespondent is sustained in including in decedent’s estate, for purposes of taxation, the shares of stock in domestic corporations.
We come now to consider petitioner’s third issue, in support of which it is urged that section 302 (c) is unconstitutional in so far as it raises a conclusive presumption that gifts made within two years prior to decedent’s death were made in contemplation of death. We have so held in American Security & Trust Co. et al., 24 B. T. A. 334. But, as pointed out in that case, section 302 (c) contains two provisions, the first being set out in the first sentence of that section and demanding proof to overcome the presumption of its applicability in any case wherein the Commissioner has made a determination thereunder. It requires that the value of decedent’s interest in property which he has at any time transferred, except by a bona fide sale, in contemplation of death, or intended to take effect in possession or enjoyment at or after his death, shall be included in the estate for purposes of taxation. Where, acting under authority of that provision, the Commissioner determines that decedent has made such a transfer of an interest in property and includes the value of such interest in decedent’s estate, that determination is prima facie correct and the burden of proving it incorrect rests upon the challenger. Wickwire v. Reinecke, 275 U. S. 101.
In this case respondent has included in decedent’s estate the total value of the properties, consisting of shares of stock of domestic and foreign corporations and bonds of foreign governments, which were included in the four transfers made by decedent in October, 1926. Petitioner “ does not admit that the transfers were made in contemplation of death.” Such a denial, if it be a denial, is not the proof required to rebut respondent’s determination, which we must take to be prima facie correct, nor does it serve to shift from petitioner to respondent the burden of proof of the facts relative to the transfers. Nowhere in this record is it indicated that respondent, in so including the property transferred, is relying solely upon the conclusive presumption raised by section 302 (c). On the con[619]*619trary, the fact that respondent has included in this estate the total value of the properties transferred without deducting therefrom the exemption of $5,000 on each transfer allowed by the second provision of this section, indicates that he has determined as a fact that these transfers were made in contemplation of death.
Nor does it appear upon this record that petitioner was in possession of evidence proving that the transfers in fact were not made in contemplation of death. Petitioner having faded in the proof of facts essential to his contention, we sustain respondent’s action in including in decedent’s estate the shares of stocks of the domestic corporations embraced by the four transfers. We except, however, the transferred shares of stocks of foreign corporations and the bonds of foreign governments for the reason that, under our decision in the Brooks case, supra, such stocks and bonds were not situated in the United States, either at the time of the transfer or at the time of decedent’s death, as provided in section S03 (d). Consequently, they should not be included in decedent’s estate.
Reviewed by the Board.
Judgment will be entered under Rule 50.
LaNSdon did not participate in the consideration of or decision in this report.
Maequette concurs in the result.