Starck v. Commissioner

3 B.T.A. 514, 1926 BTA LEXIS 2635

• Court: United States Board of Tax Appeals
• Decided: January 30, 1926
• Docket: Docket No. 4051.
• Status: Published

Opinion

OPINION.

Littleton:

The question presented in this appeal is whether the transfer of the stock by the decedent to his children on January 8, 1919, was made in contemplation of death, within the meaning of section 402 of the Revenue Act of 1918, which provides that the value of the gross estate shall be determined by including the value at the time of death of all property of the decedent to the extent o £ any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of death, except in the case of a tona fide sale for a fair consideration in money or money’s worth.

The transfers here involved were made more than three years before the death of the decedent, and the presumption in the statute with respect to transfers made within two years prior to death does not arise.

In determining whether a transfer is made in contemplation of death, the Board must look to the expressions of the decedent, to the outward visible acts and circumstances surrounding a transfer of property prior to death. So far as the transfer of the 520 shares of stock to Philip T. Starck is concerned, it might well be said, under the evidence, that this transfer was for a fair consideration in money or money’s worth, since it appears that the decedent’s motive in making the transfer of stock to his son was in recognition of the valuable services rendered by him over a period of years and in compliance with the demand of the son that his interest in the business be increased.

There have been presented to this Board opposing pictures of practically the same state of facts. The executor portrays the decedent as physically strong, healthy, optimistic, and an energetic man both before and after his stay at the hospital in Chicago and the transfers of the stock in question; that for three years after the transfer of stock he continued his activities as he had for several years before, and that, although he had occasional attacks of indigestion and headache as a result of hearty eating, he regarded these ailments lightly and was not influenced by them in any way in making the transfers of the stock in question. The Commissioner, on the other hand, portrays the decedent as a man suffering for many years from severe headaches, serious stomach trouble, and heart disease, necessitating his going to a hospital for a period of 24 days and, in addition, spending a considerable portion of his time at health resorts; that his health was such in 1918 that he made his will and, in 1919, transferred the stock to his son and daughters in contemplation of death; and that, thereafter, he gradually declined in health until his death from heart disease on March 31, 1922.

B. A. Winterburn, secretary of the P. A. Starck Piano Co., testified concerning a conversation with the decedent, as follows:

In 1917 I was offered a position with another concern, and I went to Mr. Starck and told him my intention to leave and he asked me why; I told him I thought it was better for me; that I had a chance to get into this other concern and become a stockholder in the company and he told me at the time— he told me to stay — he said his holdings in the P. A. Starck Piano Company were too large, and that he was going to make some division of his stock; that Mr. P. T. Starck had been so helpful in building the business and had been so much help to him in looking after the branch stores and general business of the company, that he felt that it was no more than right he should have a larger interest in the business than he had at that time, and another thing, living expenses were getting higher and P: T’s family was growing and it was his intention to make some division of his holdings at that time. * * ⅜

Q. Did Mr. P. A. Starck say anything to you about desiring to see his children enjoy this property during his lifetime?

A. Yes. He said that his son and daughters were entitled to enjoy a part of the money that he had made, and that he wanted to divide it up so that they could enjoy it, while he was living, and so that he could see them enjoy it, and that was also one of the reasons for dividing his stock.

Philip T. Starck testified that during 1917 he had several conversations with the decedent relative to a division of the stock and that finally, in the latter part of 1917, he stated to the decedent that unless he was given additional stock he would withdraw from the business, whereupon the decedent stated:

I want you to be satisfied with the business. You have been working hard. You have got a big family. He said, I am going to fix this thing up as soon as I possibly can now, so that everything will be all right.

This witness further testified that at the time of the transfers—

He [the decedent] told me he wanted me to have a substantial interest in the business. He said, “ I. will turn over a certain amount of stock to you, and I will turn over a certain amount to the girls, so that they will be independent, and each one can take care of their own. A great many men who have made a success in life wait until they die, then their children will get the money and have a good old time with it, and the man that made the money don’t have the pleasure of seeing their children have a good time. I want my children to have a good time while I am alive. I want to see them enjoy this money. I want them to have this money just like it is their own, so that they can do with it what they want. I want them to have a nice house, with a nice automobile, and have parties and friends, and I am having the pleasure with them.” That is just the conversation we had.

That the purpose of the decedent, and the cause which moved him to make these transfers, was to reward his son for faithful services and at the same time to provide for the independence of his two daughters during his lifetime, is established by the testimony of a number of the decedent’s personal friends and business associates. It is shown that as far back as 1911 the decedent had discussed the matter of transferring certain of his stock to his son and daughters, and, also, the question as to whether it should be given to them direct or placed in trust.

As to the decedent’s health, his physician for a period of more than 25 years prior to the transfers testified that he had never suffered from any serious illness and described him as a human dynamo.

Webster’s Unabridged Dictionary defines “ contemplation ” as the act of looking forward to an event as about to happen; expectation; act of intending, purposing, or considering, hence, intention; consideration; etc.

An act may well be performed in contemplation of death at some time in the future and yet not be in contemplation of death within the meaning of that phrase as used in the statute. The intention of Congress in the enactment of section 402 of the Revenue Act of 1918 was to provide for the inclusion in the gross estate of the value of any property concerning which the decedent made 'a transfer, except for a fair consideration in money or money’s worth, in contemplation of death within a reasonable time in the near future, as distinguished from the general expectation of death entertained by everyone.

In Shwab v. Doyle, 269 Fed. 321, the Circuit Court of Appeals said:

On principle, and without present reference to authority, the ultimate question concerns the motive which actuated the grantor; that is to say, whether or not a specific anticipation or expectation of her own death, immediate or near at hand (as distinguished from the general and universal expectation of death some time), was the immediately moving cause of the transfer.

In Meyer v. United States, 60 Ct. Cls. 474, 483, the Court of Claims said:

If it be said that there need not be a conviction that death is imminent, there must be at least a belief that it is to be expected in the very near future, rather than in the usual course of events, and in this state of mind, in this belief, in the near approach of death, must be found the motive for the conveyance if it is properly to be characterized as made in contemplation of death.

In Spreckels v. State, 30 Calif. App. 363, the court said:

A reasonable and just view of the law in question is that it is only where the transfer of property by gift is immediately and directly prompted by the expectation of death that the property so transferred becomes amenable to the burden; or, as counsel for the respondents with singular aptness states the proposition: “ It is only when contemplation of death is the motive without which the conveyance would not be made that a transfer may be subjected to the tax.” That is, the expectation of death must be the direct, specific, and Immediate animating cause of the transfer.

In State v. Pabst, 139 Wis. 561, the court said:

It is manifest that they [the words] were intended to cover transfers by parties who were prompted to make them by reason of the expectation of death, and which, in view of that event, accomplished transfers of the property of decedents in the nature of a testamentary disposition. It is therefore obvious that they are not used as referring to that expectation of death generally entertained by every person. The words are evidently intended to refer to an expectation of death which arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it on those whom they regard as entitled to their bounty.

In tlie case of Rea v. Heiner, 6 Fed. (2d) 389, the District Court for the Western District of Pennsylvania stated:

There is a common agreement that the words “ contemplation of death,” mean not the general knowledge of all men that they must die; that it must be a present apprehension, from some existing bodily or mental condition or impending peril, creating a reasonable fear that death is near at hand; and that, so arising, it must be the direct and animating cause, and the only cause, of the transfer. If this apprehension, so arising, is absent, there is not that contemplation of death intended by the statute, especially when another adequate motive actuating the gift is shown.

Applying these legal principles to the case in hand, I reach without difficulty the conclusion that the gifts in question made by Mrs. Oliver were not made in contemplation of death. Her sound condition, mentally and physically ; her active participation in important affairs; her expressed belief that she'would live to a very old age; the preparation she was making for extensive improvements on her farm and at her home in Canada — all these, in connection with the animating motives for the transfer hereinbefore found to exist, conclusively rebut and overcome the presumption of the statute.

See, also, Conway’s Estate, 72 Ind. App. 303; Rosenthal v. People, 211 Ill. 306; State Street Trust Co. v. Stevens, 209 Mass. 373; Commonwealth v. Fenley, 189 Ky. 480; In re Spaulding’s Estate, 63 N. Y. S. 694; In re Palmer’s Estate, 102 N. Y. S. 236, 240; Vaughan v. Riordan, 280 Fed. 742.

In our opinion the evidence in this appeal does not justify the conclusion that the transfers of the stock were made in contemplation of death, within the meaning of the statute. On the contrary it appears from the evidence that the decedent was strong and active .until the date of his death, and that he regarded his ailments inconsequential, and, with the exception of about three weeks’ treatment in a hospital in 1918, he was never under the regular care of a physician. The decedent’s motive in making the transfers appears to have been for the purpose of rewarding the son for his services, of providing for the independence of his daughters during his lifetime, and of reducing the Federal income tax, rather than in the expectation of death within the reasonably near future.