Hughes v. Commissioner ( 1946 )

Estate of Edward P. Hughes, Helen H. Rooney, Administratrix, c. t. a., Petitioner, v. Commissioner of Internal Revenue, Respondent

Hughes v. Commissioner

Docket No. 8139

United States Tax Court

7 T.C. 1348; 1946 U.S. Tax Ct. LEXIS 13;

December 16, 1946, Promulgated

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Decision will be entered for the petitioner.

The decedent in 1930 transferred certain property in trust, retaining the income for life, with remainder to his five children and their issue per stirpes. No other remainderman was named to take in case the grantor survived all the designated remaindermen. Held, that the value of the trust corpus, as of his death, is not to be included in the gross estate of decedent for estate tax purposes under section 811 (c) of the Internal Revenue Code.

Osborne A. McKegney, Esq., for the petitioner.

Martin M. Lore, Esq., for the respondent.

Leech, Judge.

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LEECH

Respondent has determined a deficiency of $ 4,512.91 in estate tax. The issue is whether the value, at decedent's death, of certain property theretofore transferred by him in trust is to be included in his gross estate for estate tax purposes under section 811 (c) of the Internal Revenue Code.

FINDINGS OF FACT.

The petitioner, Helen H. Rooney, is the legally qualified administratrix of the estate of Edward P. Hughes, who died testate on December 19, 1939. The estate tax return for the decedent's estate was duly filed with the collector of internal revenue for the first district of New York.

On September 17, 1930, the decedent, as grantor, executed an inter vivos trust, conveying certain property. By the terms of the trust instrument the trustee was to pay the income to the grantor for life and upon his death the corpus was to be divided into five equal parts as separate and distinct trusts and the income therefrom paid to five persons designated as beneficiaries, these being the four sons and an adopted daughter of the grantor, or their issue, per stirpes. Upon the death of any one of the five beneficiaries leaving no issue, the corpus of the trust of such beneficiary was to be paid over equally to the surviving beneficiaries, or their issue, per stirpes. By the trust instrument no beneficiary was named to take in the possible contingency that the grantor should outlive all of the remaindermen.

In determining the deficiency, respondent has included in the gross estate of decedent the value of the property transferred in trust, under section 811 (c) of the Internal Revenue Code, as a transfer intended to take effect in possession or enjoyment at or after decedent's death.

OPINION.

Petitioner contends that, since the trust instrument made no provision for reversion of the property in the event the decedent outlived all of the remaindermen, the resulting extremely remote possibility of reverter existed only by operation of law and the value of the property, therefore, may not be included in decedent's estate.

Respondent points to the added fact that the grantor here has retained a life estate. He argues that, although the trust corpus may not be included in decedent's estate merely because of that fact, as the Joint Resolution of March 3, 1931, may not be retroactively applied ( Hassett v. Welch, 303 U.S. 303">303 U.S. 303), that fact may be considered, together with the existence of a possibility of reverter, to show the intent of the grantor that the remainder estate should not vest in possession or enjoyment until after his death. His theory is that the death of the grantor was the indispensable and intended event that passed the corpora from the dead to the living.

In May v. Heiner, 281 U.S. 238">281 U.S. 238, it is held that nothing passes by reason of the death of the life tenant. Such event merely terminates the life estate. That is still the law. Commissioner v. Hall's Estate, 153 Fed. (2d) 172, affirming the memorandum opinion of this Court; Estate of Edward E. Bradley, 1 T. C. 518; affd., 140 Fed. (2d) 87. The theory of respondent is in direct conflict with that rule. We have already so held.

In the recent case of Estate of George W. Hall, 6 T.C. 933">6 T. C. 933, in holding that the value of the corpus of the trust was not includible in decedent's estate under section 302 (c), we said:

As to the second point, the respondent argues that it must be emphasized that the retention of the income for life is an important factor to be considered in determining whether the shifting of the interest was complete as soon as the trust was created, citing Reinecke v. Northern Trust Co., 278 U.S. 339">278 U.S. 339, and that until the decedent died, and thereafter, the ultimate possession or enjoyment of the property was held in suspense to await the outcome of future contingencies, including the contingency that the corpus might be returned to the decedent or to his estate, citing Fidelity-Philadelphia Trust Co. ( Stinson Estate) v. Rothensies, 324 U.S. 108">324 U.S. 108. This we consider is no more than an indirect attack upon May v. Heiner, 281 U.S. 238">281 U.S. 238. We disagree with the respondent upon this point. * * *

We do not have here a so-called "survivorship case" such as was presented in Estate of John C. Duncan, 6 T. C. 84. We think the situation here is ruled by our decisions in Frances Biddle Trust, 3 T. C. 832; Estate of Harris Fahnestock, 4 T. C. 1096; and Estate of Mary B. Hunnewell, 4 T. C. 1128. We are aware of the decision of the Second Circuit in Commissioner v. Bayne's Estate, 155 Fed. (2d) 475, which differs from our interpretation of the decisions of the Supreme Court in Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108">324 U.S. 108, and Commissioner v. Field, 324 U.S. 113">324 U.S. 113, and holds that those decisions require the inclusion in decedent's estate of the trust corpus where there exists a possibility of reverter, even if only by implication of law and irrespective of how remote such possibility may be. We adhere to our position as expressed in the Biddle, Fahnestock, and Hunnewell cases, supra. See also Estate of George W. Hall, supra.

We hold that respondent erred in including in decedent's estate the trust corpus here involved.

Decision will be entered for the petitioner.