Bigelow v. Commissioner , 39 B.T.A. 635 ( 1939 )

ALICE A. BIGELOW, EXECUTRIX OF THE ESTATE OF HERBERT M. BIGELOW, DECEASED, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Bigelow v. Commissioner

Docket No. 82659.

United States Board of Tax Appeals

39 B.T.A. 635; 1939 BTA LEXIS 1009;

March 21, 1939, Promulgated

---

A resident of California executed an agreement vesting in his wife "a present, existing and equal interest" in property acquired by him prior to the effective date of section 161(a) of the California Civil Code. Held, that only 50 percent of the property owned by him prior to the execution of such agreement may be included in his gross estate. United States v. Goodyear, 99 Fed.(2d) 523, followed.

Thomas R. Dempsey, Esq., A. Calder Mackay, Esq., Arthur McGregor, Esq., and James L. Patten, Esq., for the petitioner.

L. H. Rushbrook, Esq., for the respondent.

---

MELLOTT

SUPPLEMENTAL OPINION.

MELLOTT: Under date of August 23, 1938, opinion was promulgated herein () in which the facts, all of which were stipulated, are set out. The decision, entered in conformity with said opinion, has heretofore been set aside.

Since our opinion was promulgated, the Circuit Court of Appeals for the Ninth Circuit, in , has passed upon the identical question involved herein. The court, one member dissenting, concluded that the agreement - quite similar to the one before us - vesting in the wife "a present, existing and equal interest" with her husband, gave her "the same interest in the community property as she would have had if the property had been acquired after the effective date of P161a of the Civil Code" of California. (See footnote, .) No application for certiorari was filed.

The cited case is determinative of the issue before us. (See also concluding paragraph of the dissenting opinion.) It follows, therefore, that our opinion must be, and it is, set aside.

On the authority of , it is held that the respondent erred in including in the decedent's gross estate all, rather than 50 percent, of the property of the decedent acquired prior to the execution of the agreement shown in .

Judgment will be entered under Rule 50.