Irvine v. United States , 981 F.2d 991 ( 1992 )

BOWMAN, Circuit Judge.

The United States appeals from the order of the District Court granting summary judgment in favor of John O. Irvine and First Trust National Association (taxpayers) as the personal representatives of the Estate of Sally Ordway Irvine (Mrs. Irvine) and directing the government to refund federal gift taxes and interest paid by Mrs. Irvine for the third quarter of 1979 and the third quarter of 1980. For reversal, the government argues the District Court erred in holding that Mrs. Irvine’s partial disclaimer in 1979 of a remainder interest in a trust created by her grandfather in 1917 was not subject to federal gift tax, I.R.C. §§ 2501-2524 (1988).

A three-judge panel of this Court, with one judge dissenting, ruled in favor of the government. Irvine v. United States, 936 F.2d 343 (8th Cir.1991) (subsequent history omitted). The Court granted taxpayers’ suggestion for rehearing en banc, thereby vacating the panel opinion. We now affirm the order of the District Court.

I.

The underlying facts are not disputed. Mrs. Irvine was a granddaughter of Lucius P. Ordway. In January 1917 Lucius P. Ordway established an irrevocable inter vi-vos trust. The trust income was to be paid to Ordway’s wife, Jessie G. Ordway, and their five children for their lives. The trust also provided that if any of Ordway’s children died before the termination of the trust, that child’s issue and the child’s surviving spouse, as long as the surviving spouse remained unmarried, would receive the child's share of the trust income. On the death of the last surviving life beneficiary, the trust would terminate and the trust corpus would be distributed to the grandchildren, per capita. If any of the grandchildren died with issue before the termination of the trust, that grandchild’s share would be distributed in equal portions to his or her surviving issue. Mrs. Irvine became aware of her contingent remainder interest in the trust when she turned 21 in 1931.

In June 1979 Katharine G. Ordway, who was Mrs. Irvine’s aunt and the last surviving child of Lucius P. Ordway, died unmarried, and the trust terminated. Twelve Ordway grandchildren, including Mrs. Irvine, were living at the time of Katharine G. Ordway’s death. Because one grandchild had died with issue, the trust corpus was to be divided into thirteen shares. In August 1979, about two months after Katharine G. Ordway’s death, Mrs. Irvine disclaimed part of her share of the trust corpus. It is undisputed that Mrs. Irvine’s partial disclaimer was valid under Minnesota law. Minn.Stat. § 501.211 (1988) (valid disclaimer if filed in Minnesota district court within six months of event which causes disclaimant to be finally ascertained and interest indefeasibly fixed), repealed by 1989 Minn.Laws, ch. 340, art. 1, § 77 (replaced by Minn.Stat. § 501B.86 (1990), which changed the deadline to nine months effective January 1, 1990). As a result of the partial disclaimer, Mrs. Irvine was treated, with respect to the disclaimed interest, as if she had died before the termination of the trust, and her five children thus received, as provided by the trust instrument, the disclaimed portion of her share of the trust corpus.

On audit of Mrs. Irvine’s gift tax return for the third quarter of 1979, the Internal Revenue Service (IRS) took the position that the disclaimer effected a taxable gift by Mrs. Irvine to her children. Mrs. Irvine consequently paid, under protest, the gift tax asserted to be due on the disclaimer, as well as the accrued interest on the deficiency, and filed a timely claim with the IRS for a refund. Later the IRS notified Mrs. Irvine that, because the adjustments made to her gift tax return for the third quarter of 1979 on account of the disclaimer had reduced the amount of unified credit available to her, she owed additional gift taxes for the third quarter of 1980. She paid these additional taxes and accrued interest, and made another timely filing with the IRS for a refund. In March 1987 the IRS disallowed both of the refund claims, and in November of that year Mrs. Irvine died.

In February 1988, taxpayers filed the present action seeking a refund of the gift taxes and interest paid. See I.R.C. § 7422 (1988); 28 U.S.C. § 1346(a)(1) (1988). On cross-motions for summary judgment, the District Court ruled in favor of taxpayers, holding they are entitled to a refund of the gift taxes and interest paid for the third quarter of 1979 and the third quarter of 1980, together with the accrued interest on those amounts. A final judgment was entered for taxpayers in the total amount of $22,748,250.43, plus interest from the date of judgment. This appeal followed.

II.

We review de novo the district court’s decision to grant summary judgment. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); McCuen v. Polk County, 893 F.2d 172, 173 (8th Cir.1990). In the present case, the relevant facts are not disputed.

III.

The question on which this appeal turns is whether Mrs. Irvine’s 1979 partial disclaimer of her contingent remainder interest in an irrevocable trust created in 1917 (when there was no federal gift tax) effected a gift to her children for federal gift tax purposes. The government contends that it did, basing its position on the application of Treasury Regulation § 25.-2511-l(c)(2), which provides in pertinent part:

In the case of taxable transfers creating an interest in the person disclaiming made before January 1, 1977 ... a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a reasonable time after knowledge of the existence of the transfer. The refusal must be unequivocal and effective under the local law. There can be no refusal of ownership of property after its acceptance.

Treas.Reg. § 25.2511-l(c)(2) (as amended in 1986) (emphasis added).¹ This regulation reflects the fundamental principle that a disclaimer should not be subject to the federal gift tax unless the transfer creating the interest disclaimed was itself a “taxable transfer”; absent this limitation, the gift tax would be imposed on a donee’s refusal to accept a gift that never was subject to the tax in the first place, an anomaly that Congress, given its clear intent, as discussed infra, that the gift tax should not have any retroactive application, did not ordain. We note that, consistent with this fundamental principle, the Treasury Department has not promulgated any regulation dealing with the disclaimer of interests created by “nontaxable transfers.”

The transfer that created Mrs. Irvine’s contingent remainder interest occurred in 1917, when Lucius P. Ordway established his irrevocable inter vivos trust. If the establishment of this trust is indeed a “taxable transfer,” even though in 1917 the federal gift tax had not yet been enacted, then Mrs. Irvine’s disclaimer of her contingent remainder interest created by the trust would be subject to the federal gift tax unless her disclaimer was timely within the meaning of the regulation.² But if the creation of her interest by the 1917 Ordway trust is not a “taxable transfer,” then the interest validly disclaimed by Mrs. Irvine under Minnesota law passes to her five children unencumbered by the federal gift tax. The government stakes its case on the proposition that the creation of Mrs. Irvine’s interest in the Ordway trust is a “taxable transfer” within the meaning of Treasury Regulation § 25.2511-l(c)(2). We find that proposition untenable.

It is fundamental that for a transfer to be taxable there must be an applicable tax in existence when the transfer is made. No such federal tax existed on January 16, 1917, when Lucius P. Ordway irrevocably transferred assets to the trustees of the Ordway trust and Mrs. Irvine’s interest was created. Moreover, fifteen years later when the Gift Tax Act of 1932 was enacted, Congress expressed its intention not to apply the tax retroactively. Section 501(b) of the Act states: “The tax shall not apply to a transfer made on or before the date of the enactment of this Act [June 6, 1932].” Revenue Act of 1932, ch. 209, § 501(b), 47 Stat. 169, 245 (1932). This prohibition against retroactive application of the tax to pre-Act gifts has been continued throughout revisions of the Gift Tax Act and is reflected in the current Internal Revenue Code (Code) in the section governing computation of the tax. 1.R.C. § 2502 (1988) (the tax is computed upon the aggregate sum of taxable gifts made throughout the donor’s life during periods following June 6,1932). “Congress has been careful to avoid any taint of re-troactivity in connection with the 1932 [gift] tax and the subsequent amendments to the tax.” Charles L.B. Lowndes et al., Federal Estate and Gift Taxes 643 (3d ed. 1974).

We are mindful that in a case involving Mrs. Irvine’s brother John G. Ordway, the Eleventh Circuit has held that “the 1917 gift [of Lucius P. Ordway] was a taxable transfer.” Ordway v. United States, 908 F.2d 890, 895 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2916, 115 L.Ed.2d 1080 (1991). The Ordway decision gives a new definition to the term “taxable transfer” by referring to section 25.2518-2(c)(3) of the regulations, which provides that “[w]ith respect to inter vivos transfers, a taxable transfer occurs when there is a completed gift for Federal gift tax purposes regardless of whether a gift tax is imposed on the completed gift.” Treas. Reg. § 25.2518-2(c)(3). Based on that language, the Ordway decision concludes that “a taxable transfer occurs whenever there happens ‘any transaction in which an interest in property is gratuitously passed or conferred upon another,’ 26 C.F.R. § 25.-2511(c)(1) [sic], even if that transaction was not subject to the gift tax.” Ordway, 908 F.2d at 895.

Relying on Ordway and its interpretation of Treasury Regulation § 25.2518-2(c)(3), the government urges us to join the Eleventh Circuit in holding that the term “taxable transfer” in Treasury Regulation § 25.2511-l(c)(2) can refer to a transfer made before the enactment of the gift tax. We are unable, however, to accept our sister circuit’s startling conclusion. The Ord-way court’s reliance on a single sentence from a regulation explicating a section of the Code that is plainly inapplicable to this situation³ is inappropriate and misplaced. We have difficulty in understanding how there can be, in the language of section 25.2518-2(c)(3), “a completed gift for Federal gift tax purposes” unless a federal gift tax is in force when the gift is made.

Moreover, the sentence relied upon is taken out of context to support an expanded and illogical definition of the term “taxable transfer” that would include a pre-Act transfer. The distorted nature of this reading of the regulation is evident when the sentence is read in context with the sentence that immediately follows it: “[A] taxable transfer occurs when there is a completed gift for Federal gift tax purposes regardless of whether a gift tax is imposed on the completed gift. Thus, gifts qualifying for the gift tax annual exclusion under section 2503(b) are regarded as taxable transfers_” Treas.Reg. 25.2518-2(c)(3). Clearly, the sentence upon which the Eleventh Circuit relied is concerned with the $10,000 annual exclusion on gifts and has absolutely nothing to do with pre-Act transfers. There is a definitive difference between a taxable transfer that qualifies for the annual exclusion and on which a gift tax therefore is not imposed, such as an annual $10,000 check to a favorite nephew, and a transfer as to which the gift tax is not even applicable, such as a transfer pursuant to an obligation created in an antenuptial agreement executed in 1931 between a man and woman married later that year. See Commissioner v. Copley’s Estate, 194 F.2d 364, 367 (7th Cir.1952) (transfers made in 1936 and 1944 pursuant to 1931 agreement were not taxable because “[t]o hold, as the Commissioner would have us do ... would require a retroactive application of [the gift tax], which we think is not permissible. See Sec. 501(b) of the Revenue Act of 1932.”). The creation of the Ordway trust in 1917 falls into the same category as the transfers pursuant to the 1931 antenuptial agreement in Copley’s Estate; it is a transfer as to which the federal gift tax is inapplicable — and even more cleanly and clearly so than the post-1932 transfers pursuant to the 1931 agreement in Copley’s Estate.

In light of the consistently expressed intent of Congress not to apply the gift tax retroactively to transfers made prior to June 6, 1932, we cannot accept the proposition that the term “taxable transfer” in Treasury Regulation § 25.2511-l(c)(2) can refer to a transfer made before the enactment of the gift tax. Logic, history,⁴ the expressed intent of Congress, and a straightforward reading of the regulations all join here to compel the opposite conclusion. Because the contingent remainder interest that Mrs. Irvine disclaimed in 1979 was created in 1917, it never was subject to the federal gift tax and therefore was never a “taxable transfer” for federal gift tax purposes. Once the pretense that by some mysterious alchemy the treasury regulations have transformed the 1917 transfer into a taxable event is stripped away, the government is left without any basis to sustain its position.

As taxpayers point out, if Treasury Regulation § 25.2511 — 1(c)(2) is inapplicable — and we hold that it is — then state law governs the validity of Mrs. Irvine’s disclaimer for federal gift tax purposes. See Hardenbergh v. Commissioner, 198 F.2d 63 (8th Cir.) (where no applicable regulation Court applied state law to determine the validity for federal gift tax purposes of disclaimers of rights to intestate shares), cert. denied, 344 U.S. 836, 73 S.Ct. 45, 97 L.Ed. 650 (1952); see also Jewett v. Commissioner, 455 U.S. 305, 315, 102 S.Ct. 1082, 1089, 71 L.Ed.2d 170 (1982) (under cases antedating the initial regulation on disclaimers in 1958, “state law controlled both the ‘right’ to renounce and the ‘timeliness’ of the renunciation”). The government concedes Mrs. Irvine’s disclaimer is valid under Minnesota law. The regulation being inapplicable, this disclaimer therefore is not a transfer upon which a gift tax is owed.

Having concluded that Treasury Regulation § 25-2511-l(c)(2) is inapplicable, we have no occasion to consider the issues concerning the impact of that regulation on Mrs. Irvine’s disclaimer. Those issues are discussed in the latter portion of the dissenting opinion. Because in our view they are not live issues in this case, we do not reach them.

IV.

We hold that the creation in 1917 of Mrs. Irvine’s interest in the Ordway trust was not a taxable transfer. It follows that Treasury Regulation § 25.2511-l(c)(2) is inapplicable. Accordingly, Mrs. Irvine’s refusal to accept part of this nontaxable gift from her grandfather — a refusal valid under state law — also is not a taxable transfer. As the federal gift tax does not apply to Mrs. Irvine’s disclaimer, the decision of the District Court in favor of taxpayers is affirmed.

1 . The government in its oral argument has conceded that Section 25.2511 — 1(c)(2) as amended in 1986 supersedes any earlier version of the regulation and governs this case. The earliest version of this regulation, which has the effect of creating a federal standard governing the validity of disclaimers for gift tax purposes, was promulgated in 1958.

2 . The issue of timeliness in cases controlled by the regulation is the subject of Jewett v. Commissioner, 455 U.S. 305, 102 S.Ct. 1082, 71 L.Ed.2d 170 (1982). Jewett deals with the time- ’ liness of the disclaimer of an interest created after the effective date of the federal gift tax and thus does not speak to the precise issue we confront here. It is beyond dispute that in Jewett the transfer creating an interest in the person disclaiming was a taxable transfer.

3 . Neither Mrs. Irvine’s nor her brother John G. Ordway’s disclaimer is governed by section 2518 of the Internal Revenue Code. See I.R.C. § 2518 (1988). The interest each of them disclaimed was created by a transfer in the year 1917. Section 2518 and the rules implementing section 2518 apply only to the disclaimer of interests created by taxable transfers made after December 31, 1976. Tax Reform Act of 1976, Pub.L. No. 94-455, § 2009(e)(2), 90 Stat. 1520, 1896 (1976); Treas.Reg. § 25.2518-l(a)(l).

4 . The Supreme Court struck down, on Due Process grounds, the original federal gift tax (enacted in 1924) to the extent it attempted to tax transfers completed prior to its effective date. Blodgett v. Holden, 275 U.S. 142, 48 S.Ct. 105, 72 L.Ed. 206 (1927).