Pennsylvania Co. v. Commissioner

21 B.T.A. 176, 1930 BTA LEXIS 1906

• Court: United States Board of Tax Appeals
• Decided: November 3, 1930
• Docket: Docket No. 20263.
• Status: Published

Opinions

OPINION.

Phillips:

The respondent included in the gross estate the value of certain property which had been transferred by the decedent to his wife prior to his death. Some of this property had been transferred to the wife as sole owner and other transfers were to the decedent and his wife. The respondent urges that all of these gifts and transfers were made in contemplation of death. Petitioner does not contend that those transfers which were made by the decedent within two years prior to his death were not made in contemplation of death, and the action of the respondent is sustained as to those items, but it is contended that the transfers which were made more than two years prior to the death of the decedent were not made in contemplation of death and should not be included in the gross estate of decedent.

The decedent first became aware of his diabetic condition when he was 88 years old. He died when he was 61 — 23 years thereafter. In 1916, seven years before his death, his physicians’ records show him to have had incipient diabetes. In 1920 and 1921, the years in which the gifts and transfers here in question were made, his condition was practically unchanged; his heart and lungs were good, his blood pressure was good, his abdomen was negative, his skin was clear, and his weight was approximately normal. He was actively engaged in business and attended to it daily, even making regular trips of approximately six weeks in the spring and fall of each year selling goods to the trade. He spent the summer of 1921 at a hotel in Maine, returning home in an automobile and thereafter regularly attended to his business, going to New York and selling goods to the buyers who came to the market there. The treatment for his disease consisted largely in dieting and he had been on a diet more or less constantly, at least since 1916. In the spring of 1922 he was much improved and a more liberal diet was allowed by his physician. The evidence does not indicate that during the years 1920 and 1921 he was apprehensive of death in the near future. His death, on December 12, 1923, was caused, in the opinion of his physician, from a uremic condition, which developed in that year, and- not primarily from diabetes. Under all the facts of the case, we are of the opinion that the transfers and gifts which were made more than two years prior to his death were not made in contemplation of death.

Among the transfers of decedent’s property made more than two years prior to his death were certain stocks and securities which were issued or transferred to the decedent and his wife. There is no evidence that any of the wife’s property or money was given in consideration for these stocks and securities. Under the laws of Pennsylvania this property was held by the decedent and his wife as tenants by the entirety. Bramberry's Estate, 156 Pa. 628; 22 L. R. A. 594; 27 Atl. 405; Parry’s Estate, 188 Pa. 33; 41 Atl. 448; Klenke's Estate, 210 Pa. 572; 60 Atl. 166, Sloan's Estate, 254 Pa. 346; 98 Atl. 966. The Revenue Act oí 1921, section 402, provides that in determining the value of the gross estate of the decedent there shall be included all property:

(d) To the extent of the interest therein held jointly or as tenants in the entirety by the decedent and any other person, or deposited in banks or other institutions in their, joint names and payable to either or the survivor, except such part thereof as may be shown to have originally belonged to such other person and never to have been received or acquired by the latter from the decedent for less than a fair consideration in money or money’s worth: 4 * *.

The 1921 Act did not provide, as did the Revenue Act of 1924, which we had before us in Ada M. Slocum, Executrix, 21 B. T. A. 169, and Commerce Union Trust Co., Executor, 21 B. T. A. 174, that such estafes should be included whenever created. Thus the question arises whether the estates by the entireties created before the effective date of the Revenue Act of 1921 should be included. Shwab v. Doyle, 258 U. S. 529; Union Trust Co. v. Doyle, 258 U. S. 537; Levy v. Wardell, 258 U. S. 542; and Knox v. McElligott, 258 U. S. 546. These cases were all decided on the same day, Slvwab v. Doyle being used as the vehicle for the opinion laying down the principle which governed the decision of the others. In that case the Government sought, under the Revenue Act of 1916, to include in the gross estate of the decedent the value of certain property which he had transferred' during his life at a time when there was no Federal estate tax. The statute provided for a tax upon the estate of the decedent “ to the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has 'created a trust, in contemplation of s * * death.” A jury had found that the transfer had been made in contemplation of death. The court said:

The initial admonition is that laws are not to be considered as applying to cases which arose before their passage unless that intention be clearly declared. 1 Kent, 455; Eidman v. Martinez, 184 U. S. 578, 22 Sup. Ct. 515; 46 L. Ed. 697; White v. United States, 191 U. S. 545, 24 Sup. Ct. 171, 48 L. Ed. 295; Gould v. Gould, 245 U. S. 151, 38 Sup. Ct. 53, 62 L. Ed. 211; Story, Const. Sec. 1398. The comment of Story is:

“ Retrospective laws are, indeed, generally unjust, and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact.”

There is absolute prohibition against them when their purpose is punitive; they then being denominated ex post facto laws. It is the sense of the situation that that which impels prohibition in such case exacts clearness of declaration when burdens are imposed upon completed and remote transactions, or consequences given to them of which there could have been no foresight or contemplation when they were designed and consummated.

The Act of September 8, 1916, is within the condemnation.

It was held that the property transferred by decedent prior to the enactment of the Act was not to be included as a part of his estate. In the Union Trust Co. case the same conclusion was reached where decedent, in 1901, created a trust, the income to be paid her during her lifetime, with remainder over. The Government had sought to tax the property on the ground that there was a transfer to take effect at death. Levy v. Wardell involved a similar situation and a like conclusion. In Knox v. McElligott, it appeared that the decedent, Kissam, was the owner of certain bonds and mortgages and corporate bonds which he conveyed to a third person who, shortly thereafter, conveyed them to Kissam and his wife as joint tenants. In 1917 Kissam died, leaving his wife surviving. His executor made a return of decedent’s estate in which he included one-half of the value of the jointly owned property. The Commissioner added to the estate the value of the other one-half interest and assessed and collected an additional tax which the executor sued to recover. The court quotes with approval the opinion of the District Court which points out that “ at the time the statute was passed Cornelia Kissam’s interest belonged to her,” and a further statement:

From the structure of the act to say that the measure of the tax is the extent of the interest of both joint tenants is, in effect, to say that a tax will be laid on the interest of Cornelia in respect of which Jonas had in his lifetime no longer either title or control.

The court then points out that the case involves the same question as that decided in Shwab v. Doyle, supra, and reinstates the decision of the District Court allowing recovery of the additional tax.

To appreciate the limitations of this decision, it must be pointed out that New York does not recognize tenancies by the entirety in personal property, that the conveyance in question was to husband and wife as joint tenants, that either joint tenant may dispose of a one-half interest during his lifetime, thereby creating a tenancy in common, and that it was admitted that one-half of the jointly owned property passed as a part of decedent’s estate, the only controversy being with respect to the other half. For all practical purposes a joint tenancy creates a one-half interest in each of the parties which they may dispose of at will, provided that if the estate continues until the death of one the survivor takes the whole. The distinction between such an estate and one held by the entireties, where neither may alone dispose of any interest, is evident. See Tyler v. United States, 281 U. S. 497.

Examining Shwdb v. Doyle and associated cases, supra, we find that in each case that which the Government sought to include as a part of the estate of the decedent was property which had passed from his custody and control at a time when there was no Federal estate tax. Death played no part in the transfer. The attempt to include such property as a part of the estate was, as pointed out in Shwab v. Doyle, an attempt to impose a burden upon “ completed and remote transactions.” The court subsequently went further and held that estate taxes could not be imposed in such cases although the transfer was made after the effective date of the law, where not made in contemplation of death or to evade the statute. Nichols v. Coolidge, 274 U. S. 531; May v. Heiner, 281 U. S. 238. To the same effect are James Duggan, Executor, 8 B. T. A. 482, and Edgar M. Morseman, Jr., Administrator, 14 B. T. A. 108. See also Untermeyer v. Anderson, 276 U. S. 440, and Lewellyn v. Frick, 268 U. S. 238. But a contrary conclusion was reached where the transfer, although made at a time when there was no taxing statute, was not completed until decedent’s death because. he retained power of revocation. Reinecke v. Northern Trust Co., 278 U. S. 339. See also Chase National Bank v. United States, 278 U. S. 327. And in John A. Loetscher, 14 B. T. A. 228, and Helen Latham, Administratrix, 16 B. T. A. 48, it was held that property transferred in contemplation of death should be included in the gross estate, although the transfer was made before the enactment of the statute levying the tax, but at the time when a prior act of similar import was in effect.

The question presented with' respect to the tenancies by the entirety set up before the enactment of the Bevenue Act of 1921 is whether the transfer of the husband’s property to the wife was completed at the time the tenancy was so set up or at the time of death. If it was the death which completed the transfer of this property to the wife, a tax imposed at death is not retroactive and our decision must be governed by Reinecke v. Northern Trust Co., supra, and Chase National Bank v. United States, supra. If the transfer is a “ completed transaction ” (Shwab v. Doyle) so that decedent “ had in his lifetime no longer either title or control ” (Knox v. McElligott), then our decision is controlled by the decisions in the Shwab and Knox cases. As we read the decision in Tyler v. United States, supra, it is based squarely and solely upon the ground that there was a transfer at death, not in the strict sense of that word, but in the sense that the death was the generating source of important and definite accessions to the property rights of the surviving tenant; that the death passed into her hands property which had originally belonged to the decedent and which she had only then become entitled to hold and enjoy absolutely as her own. Had the court been of the opinion that the deed as tenants in the entireties was sufficient to transfer the property to the wife, the case would have been similar to May v. Heiner, supra. But since both the deed and the death were required to effect the transfer of the property from the original ownership of the decedent to the sole ownership of his wife, it would seem that, as in Reinecke v. Northern Trust Co., and Chase National Bank v. United States, supra, the transfer was not complete until the death. If this be so, there is no retroactive application of the statute merely because the tenancies were created prior to the effective date of the act which levies the tax.

There are decisions of the Board to the contrary. They are based upon Nichols v. Coolidge and the theory that the deed transferred the property to the surviving tenant; that nothing was transferred by the death. In view of the decision in the Tyler case, these decisions can no longer be regarded as correct.

Eeviewed by the Board.

Decision will he entered under Rule 50.