Lowery v. Commissioner

27 B.T.A. 137, 1932 BTA LEXIS 1120

• Court: United States Board of Tax Appeals
• Decided: November 25, 1932
• Docket: Docket No. 57646.
• Status: Published

Opinions

OPINION.

Van Fossan :

The only question presented in this case is whether or not the assignment of the income from the life interest of the petitioner in the estate of J ames L. Lowery relieves her from paying the income tax thereon.

In Hazel T. Power, 23 B. T. A. 428, we said:

The rule is well established that * * * the liability for income tax upon future income or profits which will or may accrue to the assignor by reason of the ownership of or an interest in property can not be avoided by the assignor or grantor through the granting or assignment of such income or profits to another.

When the owner of a property right assigns merely the income arising therefrom and retains the other incidents of ownership which are essential factors in the production of income, he, and not the assignee, must pay the Federal tax on such income.- Bing v. Bowers, 22 Fed. (2d) 450; affd., 26 Fed. (2d) 1017; J. V. Ley dig, 15 B. T. A. 124; affd., 43 Fed. (2d) 494; Hazel T. Power, supra; E. D. Smith et al., Executors, 25 B. T. A. 291.

By the terms of the third paragraph of James L. Lowery’s will the petitioner received “ the possession, management, and the control and the rents, profits, use and income ” of his residuary estate. All of those elements combined constituted the property rights she acquired in her husband’s estate. Of them she assigned only one, the income, to her children and grandchildren. The will provides specifically that she should possess, manage, control and use the residuary estate of the testator “ for and during her natural life.” Her life estate, therefore, was so established and defined, and in order to divest herself of her entire property rights she must include in the instrument of conveyance or assignment all the elements of ownership of such estate which were specifically set forth in and granted to her by the will. She did not do so, but chose instead to give to her children and grandchildren only the income flowing from the estate, which she still held. Under such circumstances we must conclude that the income in question is taxable to her.

The petitioner, on deposition, offered testimony tending to show that she had not had the actual possession of the residuary estate of James L. Lowery, nor had she exercised management and control over it. The will created the estate to which the petitioner was entitled. If she elected to permit others to manage it for her, she can not thus be absolved from the responsibilities and legal burdens of its ownership.

The petitioner contended that the instrument of assignment is ambiguous in its terms and offered evidence to explain away such asserted ambiguity. We can perceive no such ambiguity. The petitioner set forth that she was entitled to the income of the residuary estate of her deceased husband and then proceeded to assign and transfer that income to her children and grandchildren in certain stated proportions. We must be governed by the plain words of the instrument itself and conclude that only the income from her life estate was assigned.

Eeviewed by the Board.

Decision will be entered for the respondent.

Black dissents.