Brock v. Commissioner , 16 B.T.A. 1358 ( 1929 )

ANNA BROCK, EXECUTRIX, ESTATE OF HENRY BROCK, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Brock v. Commissioner

Docket No. 29827.

United States Board of Tax Appeals

16 B.T.A. 1358; 1929 BTA LEXIS 2394;

July 17, 1929, Promulgated

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1. The decedent, a resident of Nebraska, died seized of real estate situated in that State. The statutes of Nebraska give the surviving wife a one-third interest in her deceased husband's real estate. Held that where, under the statute, substantial rights of the husband with respect to such real estate cease only at his death, the one-third interest of the wife should be included in computing the gross estate for estate-tax purposes.

2. Credit claimed by petitioner on account of inheritance taxes paid to the State of Nebraska disallowed in the absence of evidence to establish that the payments were made in respect of property included in the gross estate for estate-tax purposes.

Harry Friedman, Esq., for the petitioner.

G. S. Herr, Esq., for the respondent.

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LANSDON

The respondent has asserted a deficiency in estate tax of $423.34, which arises from the respondent's action in including in the gross estate of the decedent the value of his widow's interest under the laws of Nebraska in real estate owned by him at the time of his death and in disallowing credit claimed for inheritance taxes paid to the State of Nebraska.

FINDINGS OF FACT.

The petitioner is the widow of Henry Brock, Jr., and the executrix of his estate.

Henry Brock, Jr., a resident of Nebraska, died on February 9, 1925, leaving a widow and several children.

Included in his estate was certain real estate located in the State of Nebraska. The wife's interest in such real estate, under the laws of Nebraska, had a value at the date of his death of $39,692.37.

On the estate-tax return filed by the petitioner the amount of $39,692.37 was deducted in computing the gross estate, which deduction the respondent disallowed.

The estate paid inheritance taxes to the State of Nebraska in the amount of $129.94. The respondent disallowed a credit claimed on account of such payment, on the ground that the evidence required under article 9(a) of Regulations 70 was not furnished by the estate.

OPINION.

LANSDON: The petitioner contends that under the laws of Nebraska the widow has a vested interest in the real estate of her husband; that such property does not come to her by inheritance or as a distributive share of his estate; and that section 302 of the Revenue Act of 1924, in so far as it includes such an interest in computing the gross estate of the decedent, constitutes a direct tax in violation of section 9, Article I, of the Constitution and in violation of the due process clause of the Fifth Amendment.

The identical question thus presented was considered and disposed of by the Circuit Court of Appeals, Eighth Circuit, in Allen v. Henggeler, 32 Fed.(2d) 69, where the court held, in reversing the decision of the District Court, that the interest of the wife, under the laws of Nebraska, in her husband's real estate does not become complete until his death; that the husband has a substantial interest in his wife's share, which ceases only at his death; and that such share should be included in computing the husband's gross estate for estate-tax purposes. Upon the authority of the decision in Allen v. Henggeler, supra, which is controlling in this proceeding, we approve the respondent's determination. Cf. Nyberg, Adm. v. United States,66 Ct.Cls. 153, certiorari denied, 49 Sup.Ct. 82; 278 U.S. 646">278 U.S. 646.

The petitioner contends, secondly, that the estate is entitled to credit on account of inheritance taxes paid to the State of Nebraska.

Section 301(b) of the Revenue Act of 1924 provides:

The tax imposed by this section shall be credited with the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or territory or the District of Columbia, in respect of any property included in the gross estate. The credit allowed by this subdivision shall not exceed 25 per centum of the tax imposed by this section.

No evidence was introduced by the petitioner in support of her contention, and from the record we are unable to determine that the taxes paid were "in respect of any property included in the gross estate." The credit claimed must, therefore, be disallowed.

Decision will be entered for the respondent.