Michael v. Commissioner

16 B.T.A. 1365

• Court: United States Board of Tax Appeals
• Decided: July 17, 1929
• Docket: Docket No. 25874
• Status: Published

Opinion

OPINION.

Lansdon:

But few positive facts are established by the record. The decedent purchased the property, but neither the date nor price is shown. He took title in the name of his friend Biederman, and possession to his own account. He collected the rents and later sold the property at a price not definitely shown, but at a profit of $5,-679.36. Some meager testimony to the effect that the decedent intended to give the property to the wife, or that he, at different times, said he had given it to her, and that she considered the property hers, was produced, but each witness admitted that no formal transfer of title or possession was made to the wife.

All authorities agree that to make effective a gift there must not only appear an intent on the part of the donor to part with the title, but also an actual passing of the title to donee by a delivery either actual or constructive, of the thing itself. Whatever may have been the intentions of the decedent with reference to giving the property to the wife, it is clear that no completed gift was ever in fact effected, unless it would be to the proceeds of the sale after the profit had accrued to the decedent. The petitioner has failed to produce evidence sufficient to overcome the presumption as to the correctness of respondent’s determination, which we accordingly approve.

Decision will be entered for the respondent.