Rebmann v. Commissioner , 18 B.T.A. 1265 ( 1930 )

GODFREY R. REBMANN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Rebmann v. Commissioner

Docket No. 25132.

United States Board of Tax Appeals

18 B.T.A. 1265; 1930 BTA LEXIS 2489;

February 20, 1930, Promulgated

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In 1922 the petitioner told his sons and his wife that he intended to give or was going to give 2,000 shares of stock which he owned to his children and in the meantime would apply the dividends toward the purchase of other stock for them. In 1923 he purchased such other stock, applied the dividends against the purchase price, and delivered it to them. Later in 1923 he transferred the 2,000 shares of stock to his children. In 1922 there were reasons why the petitioner desired to retain control of such stock and of the investment of dividends paid thereon. Held, the petitioner did not intend to create a trust.

J. Warren Brock, Esq., for the petitioner.

Harold Allen, Esq., for the respondent.

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PHILLIPS

The Commissioner asserted a deficiency in income taxes for the calendar year 1923 in the amount of $3,891.15. The petitioner brings this proceeding for a redetermination of his tax liability. Of the deficiency asserted $829.80 is admitted to be due, leaving $3,061.35 in controversy. It is alleged that the Commissioner erred by including in petitioner's income for 1923 the amount of $12,000, representing dividends paid on 2,000 shares of the preferred stock of the American Engineering Co. standing in the name of petitioner during the calendar year 1923.

FINDINGS OF FACT.

The petitioner is an individual residing at 3926 Spruce Street, Philadelphia, Pa.

In the taxable year in question petitioner had four children, G. Ruhland Rebmann, Jr., Paul C. Rebmann, Walter Rebmann and Anna K. Rebmann, the last two of whom were minors.

In 1919 or thereabouts petitioner, being the owner of a large number of shares of the stock of the American Engineering Co., transferred to each of two sons, Ruhland, Jr., and Paul, 1,600 shares of that stock. Of the 1,600 shares transferred to Ruhland, Jr., 800 shares were held by him for the benefit of his younger brother, Walter, and 800 shares of the 1,600 shares transferred to Paul were held by him for the benefit of his younger sister, Anna. It was petitioner's desire that the older sons become actively interested in the American Engineering Co. and the stock intended for Walter and Anna was transferred to Ruhland, Jr., and Paul and held in their name in order to give them greater prestige with the company.

In the latter part of the year 1922 petitioner was the owner of 2,349 shares of the 6 per cent preferred stock of the American Engineering Co., which were subject to a voting trust and evidenced by voting trust certificates.

In November or December, 1922, petitioner told his sons Ruhland, Jr., and Paul and probably Walter, who was almost of age at that time, and his wife that he "intended to give" or was "going to give" 500 shares of the preferred stock of the American Engineering Co. to each of his four children, and that he would turn the stock over to them in 1923 and in the meantime would apply the dividends toward the purchase of certain other stock for them. The stock certificates for the 2,349 shares owned by petitioner remained in his safe-deposit box at the bank and were not segregated, earmarked, or otherwise identified in any way.

The stock which petitioner expected to buy for his children with dividends from American Engineering Co. stock was the common stock of the Otis Elevator Co. He was a director ans vice president of that company and knew that it was going to change the par value of its stock from $100 to $50 and felt that it was a good investment. He did not wish to deliver the American Engineering Co. stock to his children at that time because one son had gone into business and he did not want this son to use the money from the dividends in that business. At the same time he had a parental desire to treat all his children alike.

In May, 1923, petitioner bought 200 shares of the common stock of the Otis Elevator Co., at $125 per share and had it transferred to his four children, 50 shares to each. He borrowed $20,000 to help pay for this stock.

The American Engineering Co. paid dividends quarterly on or about January 15, April 15, July 15, and October 15. Petitioner received the dividends on the 2,000 shares of the American Engineering Co. preferred stock in the amount of $12,000 during the year 1923 and credited this amount toward the payment of the 200 shares of stock of the Otis Elevator Co. which he had purchased for his children. The balance of the purchase price, $13,000, he charged to them in equal amounts. The children thereafter repaid such balance to him.

At the time of delivering the 50 shares of Otis stock to his son. G. Ruhland Rebmann, Jr., on or shortly after May 15, 1923, petitioner stated that he had purchased this stock and applied the dividends received by him, in January and April, 1923, from the stock of the American Engineering Co. against the purchase price and that the dividends on the stock of the American Engineering Co. would be held by him and credited against the purchase price of the Otis Elevator Co. stock.

On October 15 petitioner transferred 2,000 shares of the preferred stock of the American Engineering Co. to his children as follows: to Walter Rebmann, 1,000 shares, and to Anna K. Rebmann, 1,000 shares. Thereafter G. Ruhland Rebmann, Jr., transferred 300 shares of the 1,600 shares of American Engineering Co. which had previously been transferred to him by petitioner (800 of which were held for the benefit of his brother Walter) to Walter Rebmann; and Paul Rebmann transferred 300 shares of the 1,600 shares of the stock of the American Engineering Co. which had previously been transferred to him by petitioner (800 shares of which were held for the benefit of his sister Anna) to Anna K. Rebmann so that thereafter the four children owned 1,300 shares each of the stock of the American Engineering Co.

Petitioner did not include the $12,000 which he received as dividends from the 2,000 shares of preferred stock of the American Engineering Co. in his income-tax return for the calendar year 1923, nor did he make any return for this amount as trustee for his children, G. Ruhland Rebmann, Jr., Paul Rebmann, Walter Rebmann, and Anna K. Rebmann. Each of these children included in his individual tax return the $3,000 which petitioner had credited to him on account of the 50 shares of stock of the Otis Elevator Co. which petitioner had transferred to him.

The deficiency here in question arises in part from the action of the Commissioner in including in gross income of the petitioner the $12,000 received by him as dividends on the 2,000 shares of the preferred stock of the American Engineering Co.

OPINION.

PHILLIPS: The sole issue before us is whether in November or December, 1922, petitioner established a valid trust of 500 shares of the preferred stock of the American Engineering Co. for the benefit of each of his four children, G. Ruhland Rebmann, Jr., Paul C. Rebmann, Walter Rebmann, and Anna K. Rebmann.

The petitioner admits liability for $829.80 of the deficiency asserted against him, leaving the amount of taxes in controversy, $3,061.35, which arises from the Commissioner having included in income $12,000, representing the dividends received by the petitioner in the calendar year 1923 on 2,000 shares of the preferred stock of the American Engineering Co. held by him. The petitioner contends that this stock was held by him as trustee for the benefit of his four children.

The petitioner urges that the intention to constitute a trust is evidenced by the subsequent acts of the donor and points out that in May, 1923, he purchased 200 shares of the common stock of the Otis Elevator Co. and had it transferred to his four children, 50 shares to each of them, charging them with the purchase price of the stock and crediting them with $3,000 each, which amount was equal to the dividends which he received during 1923 on 500 shares of the preferred stock of the American Engineering Co.

The respondent contends that the petitioner merely expressed an intention to make a gift in the future and that he did not constitute a trust; that his subsequent acts were consistent with this intention and that his final disposition of the stock by transferring 1,000 shares to his son Walter and 1,000 to his daughter Anna was inconsistent with an intention to create a trust in 500 shares for the benefit of each of his four children. So far as this last point is concerned, it seems sufficient to point out that the effect of these transfers in 1923 was merely to effect equal division of the stock of the American Engineering Co. among the four children, while avoiding a multiplicity of transfers.

Under the laws of Pennsylvania, and the weight of authority, a valid trust in personal property may be constituted by parole, ; ; ; . No particular form of words is necessary to constitute a trust by parole, ; , but the intention to create a trust must be clear and unambiguous, ; , and it must be reasonably certain in its terms with a definite subject, object, and purpose.

As was said in ; , "To constitute a trust there must be either an explicit declaration of trust or circumstances which show, beyond a reasonable doubt, that a trust was intended to be created. It would introduce a dangerous instability of titles, if anything less was required, or if a voluntary trust inter vivos could be established in the absence of express words, by circumstances capable of another construction or consistent with a different intention."

If a trust was constituted by petitioner at all it was constituted in November or December, 1922, when he told his wife and two or three of his children that he "intended to give" or was "going to give" each of his four children 500 shares of the preferred stock of the American Engineering Co., and that he would "keep the dividends and buy them stock." The language used by the petitioner was an expression of his present intention to act in the future. Both his language and his future acts indicate that in 1922 it was his intention thereafter to invest the dividends on this stock for the account of his children and at some future, undetermined time to give them the stock itself. He did not wish or intend to give it to them at that time.

It is a principle requiring no citation of authority that an unexecuted gift is not enforcible either at law or in equity and will not be enforced through the device of declaring a trust. This is conceded by counsel for petitioner, who states his contention to be "that it was the intention of the petitioner in making the declaration with respect to the shares of stock here involved, then and there to transfer the equitable title or beneficial interest in said stock to his children, retaining legal title thereto as trustee only and that the declarations of the petitioner were an expression of this intention and not merely of an intention to make a gift in futuro."

We are of the opinion that the record does not support this contention. It appears that the petitioner and his wife had previously created for their children what the petitioner describes as "a regular trust put through the courts of Philadelphia, all drawn up in writing." He was familiar with the method by which a trust could be formally created. There were, however, good reasons which are set out in his testimony, but which we need not detail here, why he wished to retain control over both the stock and the dividends and did not wish at that time to vest any enforcible claim against the stock in his children. We have no doubt that the petitioner had a bona fide intention to give the stock to his children when he felt the proper time had come, and in the meantime to invest the income for their account. In our opinion the circumstances negative any intention that an interest should be created in the children which would be legally enforcible by them should circumstances develop in the future which made some other arrangement more desirable. Our conclusion is that petitioner neither gave this stock to his children in 1922 nor created a trust. The children had no enforcible claim to either the stock or the dividends. These dividends were the property of the petitioner and taxable as a part of his income.

In view of the conclusion we have reached respecting the intention of the petitioner, it is unnecessary to consider if, and when, his declarations and acts would have been sufficient to have constituted an execution of an intent to create a trust, had such intent existed.

Decision will be entered for the respondent.