Taurog v. Commissioner

11 T.C. 1016, 1948 U.S. Tax Ct. LEXIS 12

• Court: United States Tax Court
• Decided: December 14, 1948
• Docket: Docket No. 11429
• Status: Published

Opinions

OPINION.

Black, Judge:

The Commissioner, in support of his determination that petitioner made a gift of $118,181.52 to his wife when in 1943 he agreed to an equal division of community property with her, attendant upon their divorce, relies upon section 1000 (d) and section 1002 of the Internal Revenue Code, which are printed in the margin.¹

Petitioner denies that he made any gift of property to his wife or had any intention of doing so. He contends that what he did do was to consent to a division of community property with her which had been arrived at after considerable negotiations conducted by the attorneys on both sides and that these negotiations at all times were at arm’s length. Furthermore, petitioner contends that, when the instrument making the division of property was signed by the parties it was agreed between them that there was to be no delivery to either party until the divorce decree was obtained and that the agreement was to be made a part of the divorce decree, that it was so made, that in carrying out the division of property provided therein petitioner was discharging an obligation imposed upon him by the Nevada court, and that under such circumstances there was no taxable gift. Among the cases which petitioner cites in support of his contention are Herbert Jones, 1 T. C. 1207 (appeal dismissed, CCA-7, May 1, 1944); Edmund C. Converse, 5 T. C. 1014; affd., 163 Fed. (2d) 131; Clarence B. Mitchell, 6 T. C. 159 (appeal dismissed CCA-7, Oct. 7, 1946); and Albert V. Moore, 10 T. C. 393.

Respondent relies principally on the Supreme Court’s decisions in Commissioner v. Wemyss, 324 U. S. 303, and Merrill v. Fahs, 324 U. S. 308. He states that his position is set forth in E. T. 19, 1946-2 C. B. 4, as follows:

With respect to transfers made pursuant to legal separation agreements or divorce decrees, it is the position of the Bureau that, for both estate and gift tax purposes, a release of support rights may constitute a consideration in money or money’s worth. Accordingly, to the extent that a transfer does not exceed the reasonable value of the support rights of the wife it is to be treated as made for an adequate and full consideration in money or money’s worth. The question whether the transfer is in excess of reasonable support rights is for the - determination of the Bureau. That portion of any transfer which is allocable to the release by the wife of her property or inheritance rights is to be considered as not made “to any extent” for an adequate and full consideration in money or money’s worth.

In the recent case of Edward B. McLean, 11 T. C. 543, we discussed E. T. 19 and, among other things, said:

* * * For reasons not clear to us E. T. 19 excepts support and maintenance from marital rights, the release of which does not constitute full and adequate consideration. We deem the ruling invalid in so far as it does not also except transfers made to settle presently enforceable claims.

See also the discussion of E. T. 19 in the Second Circuit’s opinion in Commissioner v. Converse, supra.

In Edmund C. Converse, supra, we distinguished that case from the Supreme Court’s decisions in Commissioner v. Wemyss, supra, and Merrill v. Fahs, supra, and in doing so we said:

* * * The Commissioner does not contend that the Jones case is distinguishable from the present case, but argues that it is no longer the law, since the error therein was pointed out by the subsequent decisions of the Supreme Court in Commissioner v. Wemyss, 324 TJ. S. 303, and Merrill v. Fahs, 324 TJ. S. 308. This Court, in the Wemyss case, pointed out the difference between that case and the Jones case. The two Supreme Court cases just mentioned, as well as the Bristol case, all dealt with antenuptial agreements. The Supreme Court did not deal with the question which was in the Jones case and did not indicate its views on that question. We follow the Jones case and hold that the Commissioner erred by increasing the petitioner’s taxable gifts for 1941 by the amount of $625,000 which he paid to his wife. Cf. Commissioner v. Mesta, 123 Fed. (2d) 986; certiorari denied, 316 U. S. 695; rehearing denied, 317 U. S. 704.

The Second Circuit, in affirming us in the Converse case, stated that it found it unnecessary to resolve the question “as to any distinction between antenuptial and postnuptial agreements under the doctrine of the Wemyss and Merrill cases.” The court thereupon based its decision squarely upon the proposition that the amount which the taxpayer in that case paid to his divorced wife was paid to her in pursuance of the judgment of a court of competent jurisdiction and therefore was in discharge of an obligation “and the discharge thereby of the respondent’s obligation to pay that debt was an adequate and full consideration in money or money’s worth for the transfer.”

It would be unreasonable, we think, to say, where, as here, a husband and wife had come to the parting of the ways and had separated and after prolonged negotiations had arrived at a property division in which the wife was to receive one-half of the community property, which property she was entitled to receive under the laws of California and which division of property was to be embodied in the divorce decree and was in fact made a part of the decree, that the husband was thereby making a gift to his wife of the property which was transferred to her. We, therefore, hold, on the strength of the authorities cited above, that the division of community property which took place between petitioner and his wife in an arm’s length agreement which was made a part of the divorce decree, was made pursuant to and in discharge of an obligation imposed by the judgment of divorce and was for an adequate and full consideration in money or money’s worth and, therefore, was not a gift.

Reviewed by the Court.

. Decision will he entered for the petitioner.

Hill, J., concurs only in the result.

1 SEC. 1000. IMPOSITION OP TAX.

[[Image here]]

(d) [As added by section 453 of the Revenue Act of 1942, effective as of January 1, 1943.] Community Property. — All gifts of property held as community property under the law of any State, Territory, or possession of the United States, or any foreign country shall be considered to be the gifts of the'husband except that gifts of such property as may be shown to have been received as compensation for personal services actually rendered by the wife or derived originally from such compensation or from separate property of the wife shall be considered to be gifts of the wife.

SEC. 1002. TRANSFER FOR LESS THAN ADEQUATE AND FULL CONSIDERATION.

Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this chapter, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.