Tax Commission v. Parker

5 Ohio Law. Abs. 422

• Court: Ohio Supreme Court
• Decided: June 22, 1927
• Docket: No. 20385; No. 20387
• Status: Published

Opinion

ROBINSON, J.

1. The provision of Section 5332-2, General Code, “Any transfer of property from a resident * * * , if shown to have been made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property, if so made within two years prior to the death of the trans-feror, shall, unless shown to the contrary, be determined to have been made in contemplaton of death within the meaning of this title,” casts upon the transferee the burden of showing that a transfer of property made within two years of the death of the transferor was not made in contemplation of death.

2. The provision of Section 5332-2, General Code, casting upon the transferee the burden of showing that a transfer of property made within two years of the death of the transferor was not made in contemplation of death, is not a violation of any provision of the Constitution, either of the state of Ohio or of the United States.

3. The word “the,” found between the words “that” and “expectation” in subdivision fi^e of Section 5331, General Code, was not placed there, by the Legislature and is no part of that section. Subdivision five of that section correctly reads: “Contemplation of death means that expectation of death which actuates the mind of a person on the execution of his will.”

4. The controlling fact in determining whether a transferor made the transfer of property in contemplation of death is whether the purpose of the transferor was to distribute or partially distribute his estate, or was simply to do an act of generosity or kindness.

Judgment of the Court of Appeals and of the common pleas court affirmed in part and reversed in part.

Marshall, C. J., Allen and Matthias, JJ., concur. Day, Kinkade and Jones, JJ., dissent.