Carson v. Commissioner , 71 T.C. 252 ( 1978 )

Wilbur, Judge:

Respondent determined the following deficiencies in, and additions to, the Federal gift taxes of petitioners:

Taxable period Petitioner ended Additions to tax Deficiency under sec. 6651(a)¹

David W. Carson. 12/31/67 $314.92

12/31/68 821.45

12/31/70 1,088.24

3/31/71 2,606.32

6/30/71 974.11

9/30/71 338.36

12/31/71 93.75

Marjorie E. Carson. 12/31/67 $314.92 $78.73

205.36 12/31/68 821.45

12/31/70 1,088.24

3/31/71 2,606.32

6/30/71 974.11

9/30/71 338.36

12/31/71 93.75

The sole issue we must decide in this case is whether expenditures made by petitioners to finance the election campaigns of various individuals for public office constitute transfers taxable as gifts.²

FINDINGS OF FACT

Some of the facts have been stipulated and are found accordingly. The stipulation of facts and attached exhibits are incorporated herein by this reference.

Petitioners David W. Carson and Marjorie E. Carson³ are husband and wife who resided in Kansas City, Kans., at the time their petition was filed. Petitioner David W. Carson has been engaged in the private practice of law in Kansas City, Kans., since 1937.

During the calendar year 1967, petitioner established a Wyandotte County Campaign Fund at Guaranty State Bank, Kansas City, Kans., to which he transferred $83,654. These funds were disbursed during 1967 solely at petitioner’s direction and control for the sole purpose of paying political campaign expenses for various local candidates.

During 1968, petitioner transferred $8,000 to the Chipman for Attorney General Campaign. These funds were disbursed solely at petitioner’s direction and control for the sole purpose of paying campaign expenses. Also during 1968, petitioner expended $21,745.97 for advertising and postage expenses of the Chipman for Attorney General Campaign. These expenses were incurred and the funds disbursed at the direction of petitioner.

During 1970, petitioner transferred $19,000 to the General Campaign Fund of Bouska for Attorney General, and $14,059 to the General Campaign Fund of Frizzell for Governor.

During the calendar quarter ending March 31,1971, petitioner transferred $40,404.04 to the Neath for Mayor Campaign. These funds were disbursed solely at petitioner’s direction and control for the sole purpose of paying campaign expenses.

During the calendar quarter ending March 31,1971, petitioner transferred $7,000 to the Matson for Commissioner of Finance Campaign. These funds were disbursed solely at petitioner’s direction and control for the sole purpose of paying campaign expenses.

During the calendar quarter ending June 30, 1971, petitioner expended $9,000 for advertising and postage expenses of the Neath for Mayor Campaign. These expenses were incurred and the funds disbursed at the direction of petitioner.

During the calendar quarter ending June 30, 1971, petitioner transferred $2,000 to the Matson for Commissioner of Finance Campaign. These funds were disbursed solely at petitioner’s direction and control for the sole purpose of paying campaign expenses.

During the calendar quarter ending September 30, 1971, petitioner expended $3,609.24 for advertising and postage expenses of the Matson for Commissioner of Finance Campaign. These expenses were incurred at the direction of petitioner.

During the calendar quarter ending December 31, 1971, petitioner expended $1,000 for advertising and postage expenses of the Matson for Commissioner, of Finance Campaign. These expenses were incurred and the funds disbursed at the direction of petitioner.

All funds transferred or expended by petitioner for the taxable periods involved herein relate to local political offices in Kansas City, Kans., except the campaigns of Chipman for Attorney General, Bouska for Attorney General, and Frizzell for Governor.⁴

The transfers, expenditures, and disbursements described above, which serve as the basis for the deficiencies asserted by respondent, are summarized in the following table. The recipient listed represents the particular candidate benefiting from the expenditure.

Taxable period ending Recipient Amount

12/31/67 Wyandotte County Campaign Fund (to benefit various local candidates). $83,654.00

12/31/68 Chipman for Attorney General Campaign. $8,000.00

12/31/68 Chipman for Attorney General (advertising and postage expenses). 21,745.97

12/31/70 General Campaign Fund of Bouska for Attorney General. 19,000.00

12/31/70 General Campaign Fund of Frizzell for Governor. 14,059.00

3/31/71 Neath for Mayor Campaign. 40,404.04

3/31/71 Matson for Commissioner of Finance Campaign. 7,000.00

6/30/71 Neath for Mayor Campaign (advertising and postage expense). 9,000.00

6/30/71 Matson for Commissioner of Finance Campaign. 2,000.00

9/30/71 Matson for Commissioner of Finance. 3,609.24

12/31/71 Matson for Commissioner of Finance (advertising and postage expense). 1,000.00

All of the amounts summarized above (with the exception of the amounts relating to Bouska for attorney general and Frizzell for Governor) involved disbursements solely at petitioner David W. Carson’s direction and control for the sole purpose of paying campaign expenses. The disbursements would typically involve expenses for stationery, stamps, and printing to send out mailers, letters, or brochures, and sometimes involved employment of public relations people to do the art work or put the ideas advanced in the most presentable form. Additionally, disbursements were made for the purchase of radio time, television time, and advertisements in newspapers.

Petitioner owned property in a number of counties in Kansas, including Leavenworth, Wyandotte, Finney, Kearny, Grant, Stevens, Haskell, and Greenwood. Some of the property was used in the production of oil and gas, while other property was agricultural property in the process of being made irrigable. Petitioner was concerned about an oil depletion tax being imposed, and also was apprehensive that the State might impose water table levels in western Kansas generally conflicting with his irrigation efforts. Petitioner also owned a large stock interest in a bank in Kansas City, Kans.

After participating in prior campaigns for mayor, petitioner’s law firm was employed to litigate the constitutionality of an urban renewal statute that led to their representation of the Kansas City Urban Renewal Agency for a 9-year period. His firm was also employed by the city as professional counsel in annexation procedures of the Fairfax industrial district into Kansas City, Kans. Additionally, based on petitioner’s prior experience, he anticipated that his participation in the campaigns would result in referral of legal business of a general nature by the people that he met during the course of the campaign as well as individuals he assisted.

While petitioner knew the individuals he supported personally, he knew only Mr. Matson well. All of the candidates, other than Mr. Matson and Mr. Neath, were attorneys. Mr. Matson and Mr. Neath were the only candidates petitioner supported for whom he had done legal work.

Petitioner selected the candidates he would support by singling out those he thought would be the most compatible with the advancement of his property interests and would be the best for the business of his law firm.

Petitioner filed original Federal gift tax returns for the calendar years 1967 and 1968 on April 12,1969, and returns for all other periods involved on May 23, 1974. On none of these returns were any of the amounts expended for or contributed to various political candidates by petitioner reported as taxable gifts. Marjorie E. Carson filed original Federal gift tax returns for all of the taxable periods involved herein on May 23, 1974.

A statutory notice of deficiency pertaining to the taxable periods involved herein was mailed to each petitioner on September 16, 1974. Respondent determined that the transfers by David E. Carson to and for the benefit of election campaigns of various individuals for public office constituted taxable gifts, and asserted deficiencies totaling $5,237.15 against each petitioner. Respondent further determined that Marjorie E. Carson’s failure to timely file Federal gift tax returns for the years 1967 and 1968 was not shown to be due to reasonable cause within the meaning of section 6651(a), resulting in additions to tax in the amount of $284.09.

OPINION

The only issue before us is whether the funds petitioner expended directly or contributed to campaign committees on behalf of candidates for State and local offices are taxable gifts within the purview of section 2501.⁵

Section 2501 imposes an excise tax upon “the transfer of property by gift.” The tax applies whether the transfer is direct or indirect, and whether the property is real or personal, tangible or intangible. Sec. 2511(a). Where property is transferred for less than an adequate and full consideration, in money or money’s worth, the amount by which the value of the property transferred exceeds the value of the consideration received is deemed a gift subject to the tax. Sec. 2512(b).

Respondent argues that petitioner transferred funds for the benefit of political candidates, and received no consideration reducible to money or money’s worth. Petitioner contends that an examination of the purpose and history of the gift tax compels the conclusion that it was never intended to and does not encompass political contributions. We agree with petitioner.

We begin by emphasizing that we do not face circumstances where the relationship between the contributor and candidate, familial or otherwise, suggests that the political candidate is also the natural object of the donor’s bounty. In such a case, careful scrutiny of all the facts and circumstances may require a different conclusion.

We continue by recapitulating the key facts before us in order to carefully circumscribe the parameters of our holding. It is undisputed that we are considering run-of-the-mill campaign contributions (although in some instances relatively large ones). The largest portion of petitioner’s support was on behalf of candidates for local office in Kansas City, Kans. Petitioner’s support for local candidates was through the direct payment of campaign expenses for the printing and distribution of campaign literature, for advertising, and for media access. Funds for local candidates were disbursed only at petitioner’s direction and under his control.

Petitioner also contributed significant amounts to the campaign funds of candidates for the State offices of attorney general and Governor. Some of the money expended on behalf of the candidates for State offices was incurred and disbursed at the direction of petitioner, while other funds were simply transferred to the general campaign fund of the candidate involved.⁶ Petitioner was well acquainted with only one of the candidates he supported.

These facts do not suggest a gift to the candidate, but the use of petitioner’s resources to promote the social framework petitioner considered most auspicious to the attainment of his objectives in life. Petitioner focused on the social structure most conducive to his economic aspirations; others may focus on a social structure advancing their own notions of social justice, or conditions they deem essential for world peace or public order. In either case, in the particular circumstances before us, the individual candidate may generally be viewed, for purposes of the gift tax, as the means to the ends of the contributor.

This characterization is consistent with the position respondent has historically taken in a series of revenue rulings concerning the taxability of the candidate on campaign contributions. Rev. Proc. 68-19, 1968-1 C.B. 810, 811 (1968), provides:

Political funds are not taxable to the political candidate by or for whom they are collected if they are used for expenses of a political campaign or some similar purpose. However, any amount diverted from the channel of campaign activity and used by the political candidate for any personal purpose is income taxable to such candidate for the year in which the funds are so diverted. * * *

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The expenditure of political funds by a political candidate for other than campaign or similar purposes will be considered a diversion of such funds requiring the funds so expended to be included in his income. * * *

The language of the ruling makes it clear that respondent recognizes campaign contributions are intended to advance the campaign, not personally benefit the candidate. Indeed, the ruling “[presumes] in the absence of evidence to the contrary that contributions to a political candidate are political funds which are not intended for the unrestricted personal use of such recipient.” Rev. Proc. 68-19, swpra, 1968-1 C.B. at 811. We believe this accords with our interpretation of the nature of a campaign contribution. While there are marked differences in the use of the word gift in the income and gift tax laws, there is no basis for different characterizations of the factual nature of a campaign contribution.⁷

We note that the Internal Revenue Service administered the gift tax law consistent with this reading of the statute for more than one-third of a century. From 1924, when the gift tax was first enacted, until 1959, the Service issued no regulations or rulings indicating that campaign contributions were subject to the gift tax. It was not until 1959 that respondent issued a revenue ruling simply declaring, without the benefit of any analysis, that campaign contributions are subject to the gift tax. (See Rev. Rul. 59-57, 1959-1 C.B. 626; see also Technical Information Release 1125, Dec. 17,1971; Rev. Rul. 72-355,1972-2 C.B. 532.)⁸ The absence of any decided cases on the point during this long period of time also demonstrates that the respondent was not administratively applying the gift tax to campaign contributions.⁹

Congress is peculiarly aware of and knowledgeable about political campaign contributions and their financing. Yet there is no evidence in the legislative record that it contemplated application of the gift tax to campaign contributions. And as noted, until quite recently, the Service took no action even suggesting it considered inter vivos gifts and campaign contributions as cognate concepts rather than two conceptually different phenomena. The only reasonable conclusion is that a settled position contrary to respondent’s present interpretation prevailed from enactment of the first gift tax in 1924 until the end of the 1950’s. In view of this history, we believe a change in this settled interpretation was inappropriate absent a change in the statute. See Crown v. Commissioner, 67 T.C. 1060 (1977), affd. 585 F.2d. 234 (7th Cir. 1977).

We find this long-settled interpretation consistent with the legislative history and purpose of the gift tax. The Supreme Court long ago explained that purpose as follows:

The gift tax was supplementary to the estate tax. The two are in pari materia and must be construed together. Burnet v. Guggenheim, supra, 286. An important, if not the main, purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death. [Estate of Sanford v. Commissioner, 308 U.S. 39, 44 (1939). Emphasis added; fn. ref. omitted.] [¹⁰]

The development of the gift tax reinforces this conclusion. The gift tax in 1924 was adopted as a “corollary” or as supplemental to the estate tax. 65 Cong. Rec. 3119, 3120, 3122, 3172, 8095-8096 (1924) (remarks of Representative Green). See Estate of Sanford v. Commissioner, supra n. 2; R. Paul, Federal Estate and Gift Taxation, sec. 15.04, p. 963 (1942). The committee reports on the 1924 Act make clear that the tax was designed—

to impose a tax which measurably approaches the estate tax which would have been payable on the donor’s death had the gifts not been made and the property given had constituted his estate at his death. The tax unit reach gifts not reached, for one reason or another, by the estate tax. [H. Rept. 708, 72d Cong., 1st Sess. (1932), 1939-1 (Part 2) C.B. 457,477; S. Rept. 665,72d Cong., 1st Sess. (1932), 1939-1 (Part 2) C.B. 496,525. Emphasis added.]

In repealing the 1924 Act 2 years later, Congress established a conclusive presumption that gifts made within 2 years of death were made in contemplation of death and subject to the estate tax. For purposes of the estate tax, such gifts were conclusively presumed to be testamentary. After the presumption was declared unconstitutional (Heiner v. Donnan, 285 U.S. 312 (1932)), a gift tax was included in section 501 of the Revenue Act of 1932, 47 Stat. 169. In interpreting the 1932 Act and subsequent revenue laws, we have been advised by eminent authority that:

The thought in 1924 was to achieve a “unified scheme of taxation of gifts whether made inter vivos or at death.” Every provision of the existing gift tax statute must be interpreted in the light of this fundamental purpose, which carried over in all its essential outlines to the 1932 gift tax. [R. Paul, Federal Estate and Gift Taxation, sec. 15.04, p. 963 (1942). Emphasis added; fn. refs, omitted.]

A rebuttable presumption that gifts within 3 years of death were testamentary (for purposes of the estate tax) was retained as a central feature of the law until 1976. The presumption provided a bridge joining the gift and estate taxes which, despite significant differences, shared a common purpose and direction. The unification of these taxes into one system of transfer taxes in 1976, while reducing the significance of the bridge, confirms the common purpose of the two taxes.¹¹

This review of the legislative history of the gift tax clearly demonstrates that it was intended to backstop the estate tax — to impose a tax on inter vivos dispositions to beneficiaries under circumstances that (aside from the time of making the arrangements) are akin to dispositions generally made at death. We fail to see how a campaign contribution can be considered this type of disposition. It is doubtful that testamentary campaign contributions are problems plaguing estate planners or clogging probate courts. The vicissitudes of politics make political candidates an unlikely object for a decedent to “settle” his estate on, and an aspiring politician planning to finance his political ascendancy on testamentary campaign contributions may not rise far or fast. A campaign contribution is simply not a transfer that avoids the death tax, or property that, but for the transfer “would be subject in its original or converted form to the tax laid upon transfers at death.”¹²

Respondent nevertheless contends that the statute itself is very broad, providing that “any transfer for less than an adequate and full consideration in money or money's worth” shall be “deemed a gift.” But words do not have an immutable meaning without regard to the purpose and circumstances attending their usage. As the Supreme Court stated long ago:

It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. [Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).][¹³]

The present case is an example of circumstances that may be within the letter of the statute, but only by a literal reading at war with its purpose and history. Indeed, in reenacting the gift tax in 1932, Congress stated it intended the tax to apply when property “is donatively passed to or conferred upon another,” explaining further:

Since the tax is designed to reach all transfers to the extent that they are donative, and to exclude any consideration not reducible to money or money’s worth, it is provided in this section that where the transfer is made for less than an adequate and full consideration in money or money’s worth, the excess in value of the property transferred over such consideration shall be deemed a gift. [H. Rept. 708, 72d Cong., 1st Sess. (1932), 1939-1 C.B. (Part 2) 477-478. Emphasis added.]

In view of the language that follows the word “donative” (and the objective test being prescribed), Congress clearly did not use the word “donative” to refer to the intent required to make a common law gift. It apparently contemplated cases that, despite the literal words of the statute and considering all the facts and circumstances, were simply transfers foreign to the purpose of the statute.¹⁴ This view is wholly consistent with the language of the regulations basing the tax on “the objective facts of the transfer and the circumstances under which it is made.” Sec. 25.2511-l(g)(l), Gift Tax Regs.

We conclude by noting that the parties have discussed Stern v. United States, 436 F.2d 1327 (5th Cir. 1971), at some length. On facts not fairly distinguishable from those before us, the Fifth Circuit held the contributions were exempt from the gift tax under language in the regulations providing that “a sale, exchange, or other transfer of property made in the ordinary course of business * * * will be considered as made for an adequate and full consideration in money or money’s worth.” Sec. 25.2512-8, Gift Tax Regs. While the holding of the Fifth Circuit supports and is consistent with the result we reach herein, we prefer to rest our holding on the broader grounds that campaign contributions, like those before us, when considered in light of the history and purpose of the gift tax, are simply not “gifts” within the meaning of the gift tax law.

Decision will be entered for the 'petitioner.

Reviewed by the Court.

1 Unless otherwise stated, all section references herein are to the Internal Revenue Code of 1954, as amended and in effect during the taxable periods in question.

2 Taxpayers’ claims that the deficiencies are barred by the statute of limitations are plainly without merit, and appear to have been abandoned on brief. In any event, our decision on the principal issue dispenses with the need to address either this issue or the addition to tax asserted against petitioner Marjorie E. Carson.

3 ³The deficiencies asserted against Marjorie E. Carson are the consequence of the “splitting” of transfers actually made by her husband David W. Carson. See sec. 2513(a), under which a transfer is considered as made one-half by each spouse under certain conditions. Accordingly, we will refer to David W. Carson as the petitioner.

4 Petilioner made the following additional transfers that are not in issue due to the annual exclusions available to petitioner and his wife for split gifts (see sec. 2503(b)): $4,026 transferred in 1970 to the general campaign fund of W. R. Burns for assessor; $5,500 transferred in 1971 to the general campaign fund of the William Braddish campaign; and $5,300 transferred in 1971 to the Institute for Motivational Sciences for the sole purpose of paying campaign expenses.

5 We note that Congress has (as to transfers after May 7, 1974) made the gift tax inapplicable to transfers to political organizations. Sec. 2501(a)(5). Since sec. 2501(a)(5) is not applicable herein, we need not speculate about whether the definition of a political organization is broad enough to encompass all of the expenditures petitioner made.

6 Whether taxpayers support a candidate by paying various campaign expenditures on his or her behalf, or achieve the same result (possibly more efficiently) via contributions to funds managed by political campaign professionals is, in applying the gift tax, hardly a critical distinction.

7 See W. Lehrfeld, “The Gift Tax Implications of Political Contributions,” 54 A.B.A.J. 1033 (1968), stating:

“By implication, however, the income tax rulings discussed above indicate that a political contribution in the ordinary sense — that is, one clearly not an outright personal gift to the candidate — contains nongift elements. If a donor makes a political contribution to the candidate for the expenses of a political campaign, and the candidate uses it for personal purposes, the implication of holding that there is taxable income to the candidate is that the political gift was not to the person or, if the gift was to the person, that it was in some measure in trust, incomplete or contingent until used for the purpose for which it was intended. [W. Lehrfeld, 54 A.B.A.J. at 1038.]”

8 In Rev. Rul. 72-355,1972-2 C.B. 532, issued nearly half a century after enactment of the first gift tax, respondent quotes testimony given in 1956 by an assistant commissioner before a subcommittee of the Senate Rules Committee, stating that the Service considered the gift tax applicable to contributions to a political organization. We do not believe this requires any change in our review of the legislative history.

9 Respondent cites DuPont v. United States, 97 F. Supp. 944 (D. Del. 1951). That case involved a contribution to the National Economic Council, apparently under the mistaken assumption that it was an exempt charitable or educational organization. While the opinion contains dicta suggesting a political campaign contribution would be a taxable gift, that issue was clearly not the issue litigated by respondent. Since the issue presented, on the facts involved, did not concern the applicability of the gift tax to political campaign contributions, the case is distinguishable.

10 See generally C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes, secs. 22.1-22.4, pp. 639-643 (3d ed. 1974).

11 For a review of the history of the presumption and the background of present sec. 2035, see W. Peat, “The Constitutionality of New Section 2035: Is There Any Room For Doubt,” 33 Tax L. Rev. 287 (1978).

12 It may be answered that even extremely unlikely events occasionally occur in this world, and it is quite clear that a legacy to a campaign fund would form part of the taxable estate. In such an unlikely case, we concede that failing to apply the gift tax to political contributions creates a minor flaw in the symmetry of the estate and gift taxes. One is tempted to simply point out that this is the difference between the living and the dead, those who spend and those who bequeath. But the short answer is that in interpreting a difficult law, we choose the highly probable rather than the extremely improbable for our factual predicate.

13 See also United States v. American Trucking Associations, Inc., 310 U.S. 534, 543 (1940). Tax cases abound where these principles have been applied. Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955); Kimbell-Diamond Milling Co. v. Commissioner, 14 T.C. 74 (1950), affd. per curiam 187 F.2d 718 (5th Cir. 1951), cert. denied 342 U.S. 827 (1951); Gregory v. Helvering, 293 U.S. 465 (1935); Bongiovanni v. United States, 470 F.2d 921, 924 (2d Cir. 1972); Focht v. Commissioner, 68 T.C. 223 (1977).

14 “That the general standard to be applied is an objective one does not mean that the gift tax should necessarily be applied to transactions between strangers if the donor is clearly hoping to benefit himself by the transfer and not an individual whom he has probably never met and might not particularly like. * * * [P. Faber, “Gift Tax Planning: The New Valuation Tables; Net Gifts; Political Gifts; and Other Problems,” N.Y.U. 31st Inst, on Fed. Tax. 1217,1249 (1973).]”