SULLIVAN, District Judge.
This suit is brought under the Tucker Act, United States Code, title 28, Sec. 41 (20), 28 U.S.C.A. § 41(20), for the recovery of gift taxes for the years 1934 and 1935. The tax was assessed by the Commissioner of Internal Revenue pursuant to the Gift Tax Act of 1932 as amended, 26 U.S.C.A. § 550 et seq. Plaintiff paid the tax and now alleges that it was wrongfully exacted. The total amount for both years is $3,764.24 plus interest.
Only issues of law are involved and they may be stated as follows :
1. Where a gift is made of a fully paid life insurance policy, is the cash surrender value on the date the gift is made determinative of the fair market value for gift tax purposes, and
2. Where a gift is made in trust are the the beneficiaries, rather than the trust, the donees of the gift for the purpose of determining the number of exclusions of $5,000 allowable under Sec. 504(b) of the Revenue Act of 1932, 26 U.S.C.A. § 553 (b) ?
• Prior to 1934 plaintiff had purchased two insurance policies on her own life in the face amount of $100,000 each and in 1934 she had each of these policies split up into two fully paid single premium policies, each in the amount of $50,000. For the purpose of clarity 1 shall desígnale the policies as policies A, B, C, and D.
In December of 1934, plaintiff assigned policies A and B to her two sons. The cash surrender values of the policies on the [266]*266date of assignment were $40,696.50 each. A few days later she assigned policies C and D when the cash surrender values of these two policies were $40,286.00 each.
It is stipulated that no greater amount could have been realized on the four policies by surrendering, or borrowing on them, or otherwise, than their cash surrender value. Plaintiff paid her gift tax on the basis of the this cash surrender value, but the Commissioner refused to accept this as their true value. He chose instead to value them at the price the same insurance company would have charged for similar policies on the date of the assignment on the life of a person of the same age, sex, and condition of health as the plaintiff was at that time. This value he found to be $42,856.50. Upon this basis, the Commissioner assessed and plaintiff paid, the additional tax which is in suit.
With'respect to policies A and B no controversy exists except as to their valuation. Regarding policies C and D, however there is also a controversy concerning the number of exclusions to be allowed under Sec. 504(b) of the Gift Tax Act of 1932.
Considering the first issue, we find that Sec. 506 of the Gift Tax Act of 1932 provides: “If the gift is made in property, the value thereof at the date of the gift shall be considered the amount of the gift.” U.S.C.A. Title 26, Sec. 555.
Article 19 of Treasury Regulation 79, promulgated under the Revenue Act of 1932, reads: “The value of property is the price at which such property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell.”
Plaintiff maintains that the values here, with a willing buyer and a willing seller, could be no higher than those set forth in the cash surrender values. The defendant contends that this is merely an arbitrary figure set by the insurance company, and that if a policy holder wishes to surrender his policy he is forced to accept this' predetermined price. This, defendant says, is merely its forced sale value and cannot be regarded as a reliable criterion of real value.
The Board of Tax Appeals has consistently held that the cash surrender value of a policy is the valuation to be considered for taxation purposes: Ernest A. Cronin v. Commissioner, 1938, 37 B.T.A. 914; Mary M. Haines v. Commissioner, 1938, 37 B.T.A. 1013; Charles Lockhart et al., Executor, v. Commissioner, C.C.H. 1938, Par. 7301 B, C.C.H. Dec. No. 10101-B (1938); Madeline D. Powers v. Commissioner, C.C.H. Dec. No. 10, 562-E; ’39, Vol. 3, p. 8586 (Jan. 9, 1939) Henry W. Corning v. Commissioner, C.C.H. Dec. No. 10, 551-G; ’39, Vol. 3, p. 8576, (Dec. 8, 1938). Opposed to these cases we have Lucas v. Alexander, 279 U.S. 573, 49 S.Ct. 426, 73 L.Ed. 851, 61 A.L.R. 906, where it was necessary for the court to determine the value of a policy on March, 1913, in order to arrive at the taxable gain accruing since that date. The court said, 279 U.S. at page 579, 49 S.Ct. at page 428, 73 L.Ed. 851, 61 A.L.R. 906: “Under the statute, market price of the taxpayers property on that date, where ascertainable, may be resorted to as generally a sufficiently definite and trustworthy gauge of the gain which has later accrued. But, where the property has no market value, the statute must be interpreted in the light of its purpose to ascertain taxable gains accruing since March 1, 1913. Hence, in such a case, its fair value on the critical date is not necessarily what might then have been realized upon it by a forced liquidation by accepting the unfavorable loan or cash surrender val-^0 ^ ”
It is my belief that the cash surrender value is not the actual value of a policy but is purely an arbitrary figure fixed by the insurance company. Vance on Insurance on pp. 55, 56 states: “ * * * but, inasmuch as insurance companies desire to discourage the surrender of policies so far as they can equitably do so, the surrender value fixed upon a policy is usually set at a considerably lower figure than that which would be'established by its reserve value. It seems that, in the absence of a specified promise so to do, the insurer is under no obligation to pay any portion of the reserve value of a policy upon its surrender.”
Here the value of the gift made by the plaintiff should not be computed by a portion of its paid-in premiums, as the cash surrender value is determined, but rather by what it would cost to duplicate such a gift as of the date of the assignment.
The cash surrender value is the market value only of a surrendered policy, one in which the investment upon life has been terminated. It is the value of a policy computed by subtracting the insurance already received and other expenses from the [267]*267amount of the premiums paid in. It does not place any value upon the investment in the insured’s life expectancy.
In the case at bar the donor did not make a gift of paid-in premiums. She made a gift of an investment. The market value of that investment is what it would cost to duplicate the gift upon the day it was made. Had the donor considered she was making a gift of paid-in premiums she could have obviated the necessity of buying the policies and have made a direct transfer of the initial premium to the trust. Or she could have surrendered the policies herself and made a transfer of the cash surrender value. But she did not do this because she believed that she was making a gift of something more. She was giving the sum total of the paid-in premiums, after the insurance received had been deducted, plus an investment in her life expectancy. That additional feature, the investment in her life expectancy, which is not valued in the cash surrender of a policy, must be determined to obtain the true value of this policy. The true value of a life insurance policy still in force can be ascertained only by the cost of duplicating that policy on the date of the gift.
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SULLIVAN, District Judge.
This suit is brought under the Tucker Act, United States Code, title 28, Sec. 41 (20), 28 U.S.C.A. § 41(20), for the recovery of gift taxes for the years 1934 and 1935. The tax was assessed by the Commissioner of Internal Revenue pursuant to the Gift Tax Act of 1932 as amended, 26 U.S.C.A. § 550 et seq. Plaintiff paid the tax and now alleges that it was wrongfully exacted. The total amount for both years is $3,764.24 plus interest.
Only issues of law are involved and they may be stated as follows :
1. Where a gift is made of a fully paid life insurance policy, is the cash surrender value on the date the gift is made determinative of the fair market value for gift tax purposes, and
2. Where a gift is made in trust are the the beneficiaries, rather than the trust, the donees of the gift for the purpose of determining the number of exclusions of $5,000 allowable under Sec. 504(b) of the Revenue Act of 1932, 26 U.S.C.A. § 553 (b) ?
• Prior to 1934 plaintiff had purchased two insurance policies on her own life in the face amount of $100,000 each and in 1934 she had each of these policies split up into two fully paid single premium policies, each in the amount of $50,000. For the purpose of clarity 1 shall desígnale the policies as policies A, B, C, and D.
In December of 1934, plaintiff assigned policies A and B to her two sons. The cash surrender values of the policies on the [266]*266date of assignment were $40,696.50 each. A few days later she assigned policies C and D when the cash surrender values of these two policies were $40,286.00 each.
It is stipulated that no greater amount could have been realized on the four policies by surrendering, or borrowing on them, or otherwise, than their cash surrender value. Plaintiff paid her gift tax on the basis of the this cash surrender value, but the Commissioner refused to accept this as their true value. He chose instead to value them at the price the same insurance company would have charged for similar policies on the date of the assignment on the life of a person of the same age, sex, and condition of health as the plaintiff was at that time. This value he found to be $42,856.50. Upon this basis, the Commissioner assessed and plaintiff paid, the additional tax which is in suit.
With'respect to policies A and B no controversy exists except as to their valuation. Regarding policies C and D, however there is also a controversy concerning the number of exclusions to be allowed under Sec. 504(b) of the Gift Tax Act of 1932.
Considering the first issue, we find that Sec. 506 of the Gift Tax Act of 1932 provides: “If the gift is made in property, the value thereof at the date of the gift shall be considered the amount of the gift.” U.S.C.A. Title 26, Sec. 555.
Article 19 of Treasury Regulation 79, promulgated under the Revenue Act of 1932, reads: “The value of property is the price at which such property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell.”
Plaintiff maintains that the values here, with a willing buyer and a willing seller, could be no higher than those set forth in the cash surrender values. The defendant contends that this is merely an arbitrary figure set by the insurance company, and that if a policy holder wishes to surrender his policy he is forced to accept this' predetermined price. This, defendant says, is merely its forced sale value and cannot be regarded as a reliable criterion of real value.
The Board of Tax Appeals has consistently held that the cash surrender value of a policy is the valuation to be considered for taxation purposes: Ernest A. Cronin v. Commissioner, 1938, 37 B.T.A. 914; Mary M. Haines v. Commissioner, 1938, 37 B.T.A. 1013; Charles Lockhart et al., Executor, v. Commissioner, C.C.H. 1938, Par. 7301 B, C.C.H. Dec. No. 10101-B (1938); Madeline D. Powers v. Commissioner, C.C.H. Dec. No. 10, 562-E; ’39, Vol. 3, p. 8586 (Jan. 9, 1939) Henry W. Corning v. Commissioner, C.C.H. Dec. No. 10, 551-G; ’39, Vol. 3, p. 8576, (Dec. 8, 1938). Opposed to these cases we have Lucas v. Alexander, 279 U.S. 573, 49 S.Ct. 426, 73 L.Ed. 851, 61 A.L.R. 906, where it was necessary for the court to determine the value of a policy on March, 1913, in order to arrive at the taxable gain accruing since that date. The court said, 279 U.S. at page 579, 49 S.Ct. at page 428, 73 L.Ed. 851, 61 A.L.R. 906: “Under the statute, market price of the taxpayers property on that date, where ascertainable, may be resorted to as generally a sufficiently definite and trustworthy gauge of the gain which has later accrued. But, where the property has no market value, the statute must be interpreted in the light of its purpose to ascertain taxable gains accruing since March 1, 1913. Hence, in such a case, its fair value on the critical date is not necessarily what might then have been realized upon it by a forced liquidation by accepting the unfavorable loan or cash surrender val-^0 ^ ”
It is my belief that the cash surrender value is not the actual value of a policy but is purely an arbitrary figure fixed by the insurance company. Vance on Insurance on pp. 55, 56 states: “ * * * but, inasmuch as insurance companies desire to discourage the surrender of policies so far as they can equitably do so, the surrender value fixed upon a policy is usually set at a considerably lower figure than that which would be'established by its reserve value. It seems that, in the absence of a specified promise so to do, the insurer is under no obligation to pay any portion of the reserve value of a policy upon its surrender.”
Here the value of the gift made by the plaintiff should not be computed by a portion of its paid-in premiums, as the cash surrender value is determined, but rather by what it would cost to duplicate such a gift as of the date of the assignment.
The cash surrender value is the market value only of a surrendered policy, one in which the investment upon life has been terminated. It is the value of a policy computed by subtracting the insurance already received and other expenses from the [267]*267amount of the premiums paid in. It does not place any value upon the investment in the insured’s life expectancy.
In the case at bar the donor did not make a gift of paid-in premiums. She made a gift of an investment. The market value of that investment is what it would cost to duplicate the gift upon the day it was made. Had the donor considered she was making a gift of paid-in premiums she could have obviated the necessity of buying the policies and have made a direct transfer of the initial premium to the trust. Or she could have surrendered the policies herself and made a transfer of the cash surrender value. But she did not do this because she believed that she was making a gift of something more. She was giving the sum total of the paid-in premiums, after the insurance received had been deducted, plus an investment in her life expectancy. That additional feature, the investment in her life expectancy, which is not valued in the cash surrender of a policy, must be determined to obtain the true value of this policy. The true value of a life insurance policy still in force can be ascertained only by the cost of duplicating that policy on the date of the gift.
That an insurance policy is worth more than its cash-surrender value is recognized by the bankruptcy courts which allow a bankrupt to keep his policy providing he pays to the trustee the cash-surrender value. If the policy were worth only this surrender value the court would not grant this privilege nor the bankrupt ever avail himself thereof.
The rule is the (same) price that any person of the same age, sex, and condition of health as the insured would have to pay for a similar policy in the same insurance company on the date the gift was made. This is a reasonable standard and one agreed upon by a willing buyer and a willing seller both of whom are acting without compulsion.
The second issue concerns the number of exclusions of $5,000 which should be allowed plaintiff under Sec. 504(b) of the Gift Tax of 1932. That section provides that in cases of gifts (other than of future interests in property) made to any person by the donor during the calendar year, the first $5,000 of such gifts shall not be included in the total amount of gifts made during such year for the purpose of determining the net gifts.
On December 26, 1934, plaintiff assigned policy C to Donald McKay Frost and Mary Ryerson Frost, trustees under an indenture of trust dated October 31, 1933. Section 1 of that indenture provides that the trustees shall pay one-fourth of the income of the trust to Mary Ryerson Frost during her life and accumulate the balance. Section 2 provides that the trustees, upon receipt of a request signed by Donald McKay Frost and Mary Ryerson Frost, shall distribute and pay over the principal of the trust to said Donald McKay Frost and Mary Ryerson Frost or their issue as shall be specified in said request. Plaintiff argues that two beneficiaries have present vested interests and are in substance absolute owners of the property, and that, accordingly, $5,000 for each of them should be excluded from this gift. The Commissioner allowed but one exclusion.
Plaintiff assigned policy D to Joseph Ryerson and Edward Ryerson, trustees under an indenture of trust dated November 15, 1934. This is a trust of life insurance policies which provides for certain distributions upon the death of the grantor in the following manner: if Lsobelle McGenniss Ryerson, one of the beneficiaries, (one) survives the grantor the trustees are to divide the trust estate into two portions, one portion comprising two-thirds in value of the trust estate, and the other portion one-third. lsobelle McGenniss Ryerson is then to receive the income upon one-third the estate for her life with remainder over to certain heirs. Two-thirds of the estate, or all of the estate, if lsobelle McGenniss Ryerson does not survive the grantor, is to be delivered to the descendants of grantor’s son Donald Mitchell Ryerson, who shall survive the grantor.
It is stipulated that Donald Mitchell Ryerson died prior to the assignment in question, leaving as his sole descendants Joan and Anthony Ryerson.
Under the first assignment two exclusions should have been allowed. The power of control over the property which the. trustees could exercise in their own favor is a present interest in the property. The government’s contention that Donald McKay Frost and Mary Ryerson Frost are not the donees of the gift because neither has individual control over the property but must act jointly with the other is without merit for under such reasoning a gift of a bank deposit, payable jointly to both of two persons (and not either) would be a gift to [268]*268no one since neither had complete individual control. Yet it could not be contended that the bank was the donee.
Under the second assignment all three beneficiaries -have present interests and therefore three exclusions should have been allowed. It is contended that .in both the first and second assignment the trust and not the beneficiaries were the donees for the purpose of exclusions. But it is the donative intent and effect that indicates the actual donees. The intent was to confer a benefit upon the beneficiaries and not upon the trust. The transfer of mere legal title is not a transfer of anything valuable. Conceding that there is a transfer of legal interest to the trustees, still there is a simultaneous gift of an equitable interest to each beneficiary and it is the equitable transfer that should be taxable since it is the only one by which the donor has parted with, or the donee received, anything of value.
The case of Davidson v. Welch, D.C., 1938, 22 F.Supp. 726, affirmed by the Circuit Court of . Appeals under the name of Welch v. Davidson, 1 Cir., 102 F.2d 100, 102, on March 2, 1939 (C.C.H. Fed. Tax Service Par. 9360), has reviewed the series of decisions indicating that the trust and not the beneficiaries are the donees. On facts similar to the case at bar the court held that the beneficiaries had present and not future interests and that the beneficiaries and not the trust were the donees. The court thereupon allowed an exclusion for each of seven beneficiaries. In affirming the district court the circuit court of appeals said: “The statute of 1932, like that of 1924, was ‘not aimed at every transfer of legal title without consideration.’ It was aimed at transfers that ‘had come to be identified more nearly with a change of economic benefits than with technicalities of title’, at, ‘transfers of the title that have the quality of a gift.’ Surely transfer of title to the trustee did not partake of the quality of a gift. The trustee was not the object of the plaintiff’s bounty. The transfer to it of the bare legal title effected ‘no change of economic benefits’ in its behalf. The beneficiaries are the donees.”
I find and rule therefore that the policies are to be valued in accordance with this opinion and that two exclusions of $5,000 each should be allowed in regard to the assignment of policy C and three exclusions in regard to the assignment of policy D.