Baumgartner v. Commissioner , 17 B.T.A. 289 ( 1929 )

ALOIS FRANK BAUMGARTNER ET AL., EXECUTORS, ESTATE OF FRANK ALOIS BAUMGARTNER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Baumgartner v. Commissioner

Docket No. 22272.

United States Board of Tax Appeals

17 B.T.A. 289; 1929 BTA LEXIS 2317;

September 18, 1929, Promulgated

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The interest of a surviving wife in community property of her deceased husband and herself, both residents of the State of California, is subject to Federal estate tax imposed by the Revenue Act of 1921. Griffith Henshaw, Executor,12 B.T.A. 1441">12 B.T.A. 1441.

Chester A. Gwinn, Esq., for the petitioner.

L. S. Pendleton, Esq., for the respondent.

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MORRIS

This proceeding is for the redetermination of a deficiency in estate tax of $4,707.69 and the sole question for determination is whether the wife's one-half interest in community property of the decedent and herself should be included in the gross estate of said decedent and taxable as a part thereof.

FINDINGS OF FACT.

The facts of record, as they appear in stipulation entered into between the parties, are:

(1) That Frank Alois Baumgartner, decedent, died June 15th, 1923, leaving a last will and testament, which was duly admitted to probate by an order duly given and made by the Superior Court of the State of California, in and for the County of Santa Clara; that Alois Frank Baumgartner, Edward Charles Baumgartner and Frank Leroy Baumgartner, petitioners herein, were duly and regularly appointed and ever since have been the duly qualified and acting executors of said last will, and legal custodians of the estate of said decedent.

(2) That the notice of deficiency referred to in said petition, was mailed to said executor on the 2nd day of November, 1926, and the United States Board of Tax Appeals has jurisdiction to hear and determine said petition and proceedings.

(3) That for more than forty years prior to his death, said Frank Alois Baumgartner was married and at all times lived with his wife and at all times up to his death engaged marital relations. That at all times during the existence of the marriage and marital community of decedent and his wife, they and each of them were residents of the State of California and citizens of the United States of America.

(4) That during the period of the existence of the marriage and marital community of said decedent and his said wife, said marital community acquired otherwise than by gift, devise, bequest or descent, property, which at the date of death of said decedent had an aggregate value (after deductions allowed by law) of $240,218.09, was community property of said decedent and his wife under the laws of the State of California.

(5) That, if it is finally adjudicated that only one-half of the aforesaid community property is subject to tax under Title IV of the Revenue Act of 1921, it is hereby stipulated that the net estate of decedent for the purpose of said tax is $95,109.04 and there is no deficiency.

(6) That, if it be finally adjudicated that all of the aforesaid community property is subject to tax under Title IV of the Revenue Act of 1921, it is hereby stipulated that the net estate of decedent for the purpose of said tax is $240,218.09 and that the deficiency is $3,804.36.

OPINION.

MORRIS: The identical question here, that is, whether all or one-half of the community property of husband and wife is subject to Federal estate tax under the Revenue Act of 1921, was considered and disposed of in , affirmed in , and, therefore, the determination of the respondent will be approved to the extent of the stipulated deficiency herein.

Judgment will be entered for the respondent.