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Estate of Cyrus C. Yawkey, First Wisconsin Trust Company, Executor, Petitioner, v. Commissioner of Internal Revenue, RespondentYawkey v. CommissionerDocket No. 16241
United States Tax Court June 29, 1949, Promulgated *145
Decision will be entered under Rule 50 .1. Discretion of trustees, of which decedent-grantor was one,
held not so limited by trust provisions that it be used for "best interest" of the beneficiary as to rendersection 811 (c) and(d) inoperative.2. Right to transfer principal to beneficiaries after they become 30 years of age, none of the beneficiaries having reached that age at the time of decedent's death,
held not a power in decedent to alter or amend withinInternal Revenue Code, section 811 (d) .Jennings v.Smith (C. C. A., 2d Cir.), 161 Fed. (2d) 74Estate of Milton J. Budlong , 7 T.C. 756">7 T. C. 7563. Grantor's power as trustee to withhold income from life beneficiary under 25 years of age, which might be paid to her subsequently, or added to corpus,
held to constitute right to designate person who shall enjoy income undersection 811 (c) .Louis Quarles, Esq ., for the petitioner.H. H. Hart, Esq ., for the respondent.Opper,Judge .OPPER*1164 By this proceeding petitioner challenges respondent's determination of a deficiency in estate tax in the amount of $ 310,483.32. Petitioner contests that part of the deficiency resulting from respondent's action in including in the gross estate the value of personal property conveyed in trust by decedent during his lifetime and accrued income thereon.
All of the facts have been stipulated.
*1165 FINDINGS OF FACT.
The stipulated facts are hereby found accordingly.
First Wisconsin Trust Co., a Wisconsin corporation acting as executor of the estate of Cyrus C. Yawkey, filed a Federal estate tax return with the collector of internal*147 revenue for the district of Wisconsin.
Cyrus C. Yawkey, hereinafter called decedent, was born on August 29, 1862, and died on May 18, 1943. At the time of the transfers hereinafter described, decedent had a wife, Alice R. Yawkey, and a daughter, Leigh Yawkey Woodson. Their daughter and her husband, Aytch P. Woodson, were the parents of Nancy Leigh Woodson, born May 6, 1917, Alice R. Woodson, born July 28, 1918, and Margaret P. Woodson, born April 20, 1920.
On June 15, 1935, decedent and his wife together executed three separate trust indentures which named decedent, his wife and Aytch P. Woodson, as trustees, and contained identical terms except for the names of the beneficiaries. Each trust indenture named as beneficiary one of decedent's granddaughters, Nancy, Alice and Margaret.
The term of each trust was for the life of the respective beneficiary.
Pertinent provisions of the trust are as follows:
7. INCOME
A. Before Beneficiary Becomes Twenty-five Years of Age Until the beneficiary reaches twenty-five years of age, the Trustees shall pay for her benefit (or directly to her in their discretion) such portion of the income as they deem for her best interest, retaining any balance*148 not so used as an accumulation of income.
B. After Beneficiary Becomes Twenty-five Years of Age After the beneficiary reaches twenty-five years of age, the income thereafter received shall be paid in quarterly payments so far as possible to her, after deducting or retaining such sums as are needed for expenses, fees, income taxes, other taxes for which Trustees are liable, and such other disbursements as the Trustees in their judgment deem reasonably necessary for protection of the trust assets.
Any accumulation of income then existing may be from time to time distributed to the beneficiary or added to the principal as the Trustees deem for the best interests of the beneficiary.
8. PRINCIPAL
*1166 9. TERMINATION AND CLOSING OF TRUST
This trust shall continue during the life of the beneficiary and then terminate except as may be required under the provisions of the following paragraphs A and B as to a descendant under twenty-five years of age. On termination the Trustees (after discharging all expenses incurred, unpaid Trustees' fees, any taxes lawfully payable by the Trustees, the beneficiary or distributees of said assets) shall then pay or transfer the assets remaining in their possession as follows:
A. If the beneficiary shall leave any descendant surviving, then to her lineal descendant or descendants, except that if any such descendant be less than twenty-five years of age, this Trust as to the share of that descendant shall continue until such descendant dies or reaches the age of twenty-five years. On reaching that age, that descendant's portion shall then be paid to him or her. If that descendant does not reach that age, the interest of that descendant shall be transferred to the persons (including the next of kin *150 of the blood of any who may then be deceased) who would have received it if such descendant had predeceased the beneficiary.
B. If the beneficiary leave no lineal descendant surviving, then such remaining assets shall be divided into two equal parts and distributed thus:
(1) One part shall be distributed
(a) To the Trustees of the Trust established by these Donors, dated this day, for the benefit of her sister, Alice * * * if she survive [the beneficiary] * * * to be administered as and with the other assets of that Trust;
(b) If Alice does not survive [the beneficiary * * *] but leaves any lineal descendant surviving [the beneficiary] * * * then to Alice's next of kin of the blood, except that if any such descendant be less than twenty-five years of age, this Trust as to the share of that descendant shall continue until such descendant dies or reaches the age of twenty-five years. On reaching that age, that descendant's portion shall then be paid to him or her. If that descendant does not reach that age, the interest of that descendant shall be transferred to the persons (including the next of kin of the blood of any who may then be deceased) who would have received it if such descendant*151 had predeceased the beneficiary.
(c) If Alice does not leave any such descendant but her sister, Margaret P. Woodson, survives [the beneficiary] * * * then to the Trustees of the Trust established by the Donors, dated this day, for the benefit of Margaret, to be administered as and with the other assets of that Trust;
(d) If none of the foregoing provisions apply, then to the next of kin of the blood of [the benficiary] * * *.
(2) The other part shall be distributed [in similar manner to the other sister].
On May 18, 1943, the date of decedent's death, decedent and his wife were living at 403 McIndoe Street, Wausau, Wisconsin, and Aytch P. Woodson and his wife and their daughters, Alice and Margaret, were living at 410 McIndoe Street, Wausau, Wisconsin. Nancy Leigh Woodson, their other daughter, was on that date married to Lyman J. Spire, and was living with her husband in Stamford, Connecticut. She was at that time the mother of one child, Stephen, aged 9 months.
Decedent contributed 53.2 per cent of the total transfers made by him and his wife to each aforesaid trust.
*1167 From the date of execution of the trusts, June 15, 1935, to the date of death, May 18, 1943, the trustees*152 received the net income and distributed the amounts to each of the beneficiaries, and retained as accumulations the amounts all as set forth in the table following:
*153Distributions to Net amount Period Net income Nancy Leigh retained Woodson 6/15/35-12/31/35 $ 1,630.72 $ 1,630.72 1936 (4,036.17) (4,036.17) 1937 19,390,54 19,390.54 1938 12,525.66 12,525.66 1939 12,464.36 12,464.36 1940 13,650.84 $ 1,200 12,450.84 1941 17,442.25 2,600 14,842.25 1/1/42 to 5/6/42 6,137.50 1,400 4,737.50 Total 79,205.70 5,200 74,005.70 When Nancy Leigh Woodson became 25 years of age on May 6, 1942, the accumulated income in the Yawkey-Nancy Leigh Woodson Trust was $ 74,005.70. No part of that accumulation had been distributed to her at the time of decedent's death on May 18, 1943. The May 18, 1943, *1168 basic value of $ 260,545.17, stated in the notice of deficiency, includes $ 39,371.03 of that amount (i. e., 53.2 per cent) as representing the*154 accumulated income on the decedent's contributions to the trust, and the $ 222,715.05 proposed to be included in gross estate in that notice includes $ 33,654.51 on that account (i. e., .854804 x $ 39,371.03). The foregoing discount factor of .854804 was used for the four-year period which had to elapse between the date of death and the day on which she would reach 30 years of age.
The $ 270,230.15 which is the value as of the date of death, May 18, 1943, of the assets proposed to be included in the gross estate on account of the Margaret P. Woodson trust, similarly includes $ 47,613.08 of accumulated and undistributed income attributable to the decedent's contributions. This amount is 53.2 per cent of $ 89,498.28, the latter amount being the total accumulation of income in the trust.
The $ 268,685.85 which is the value as of the date of death, May 18, 1943, of the assets proposed to be included in the gross estate on account of the Alice R. Woodson trust, similarly includes $ 46,172.50 of accumulated and undistributed income attributable to decedent's contributions. This amount is 53.2 per cent of $ 86,790.41, the latter amount being the total accumulation of income in the trust.
*155 Each of the primary beneficiaries of each of the trusts was alive on the date of death of Cyrus C. Yawkey, May 18, 1943.
The corpora of the three trusts here in question consisted originally and at the time of decedent's death solely of personal property, to wit, stocks and bonds, or other similar securities.
With respect to the trusts in question, respondent stated in his notice of deficiency:
The following transfers aggregating $ 761,631.05 have been determined as a part of decedent's gross estate and are included therein pursuant to
sections 811 (c) and811(d)(2) of the Internal Revenue Code .* * * *
It is determined that this right [to pay principal after beneficiary reaches 30 years] amounts to a power to terminate the trust and thus brings the same within the provisions of
section 811 (d) (2) of the Internal Revenue Code . However, as this power could not have been exercised by the trustees until the beneficiary had reached the age of thirty years, the amount thereof has been discounted for the period required to elapse between the date of decedent's death and the date on which she would reach thirty years of age or for a period of four years. In accordance with Reg. 105, Sec. *156 81.10(i) and Table B the value of decedent's contributions of $ 260,545.17 has been discounted by the factor .854804 to $ 222,715.05 at which amount it has been included therein.Yawkey -- Margaret P. Woodson Trust $ 270,230.15 Yawkey -- Alice R. Woodson Trust 268,685.85 The contributions of decedent towards the Margaret P. Woodson Trust are shown at $ 270,230.15 and towards the Alice R. Woodson Trust in the amount of $ 268,685.85. As neither of these beneficiaries had reached the age of twenty-five *1169 years at time of decedent's death, the entire amount of these contributions are determined a part of the gross estate as under the terms of the trusts the decedent together with the other named trustees had the power to distribute the income or accumulate it until the beneficiaries attained the age of 25 years as well as having power over the corpus. It is determined that these powers bring the trusts within the provisions of
section 811(c) as well assection 811(d)(2) .OPINION.
Whether any part of decedent's
inter vivos transfers is to be included in the gross estate depends, as the case is presented and as we view the issues, on the answer to three questions. *157 Respondent proposed the inclusion of the value at decedent's death of three trusts established by him for the benefit of his three granddaughters on two theories: First, that decedent, being a trustee, had a power alone or in conjunction with one of the two other trustees to alter, amend, or revoke the trusts, as envisaged bysection 811 (d) (2), Internal Revenue Code ; *158 and, second, that in the same manner decedent had the right to designate the persons who should enjoy the income from the property within the meaning ofsection 811 (c) , of the code. *159 Petitioner insists in the first place that decedent had no power or right in the premises because there was an adequate external standard by which the conduct of the trustees was to be measured and this so *1170 circumscribed their actions that neither provision applies. This is the first question, and, if the contention prevailed, it would dispose of the entire controversy. But we can not sustain it.The only limitation on the use of the trustees' discretion was that what they decided on was to be for the "best interest" of the beneficiary. In the absence of fraud, bad faith, or a mischievously erroneous act, courts of equity will not interfere when the trustees are acting within the scope of their designated discretion. "It is quite true that where the manner of executing a trust is left to the discretion of trustees, and they are willing to act, and there is no mala fides, the court will not ordinarily control their discretion as to the way in which they excercise the power * * *. But the court will interfere wherever the exercise of discretion by the trustees is infected with fraud or misbehavior, or they decline to undertake the duty of exercising the discretion, or*160 generally where the discretion is mischievously and erroneously exercised * * *."
Colton v.Colton , 127 U.S. 300">127 U.S. 300Estate of Albert E. Nettleton , 4 T. C. 987, 992Estate of Milton J. Budlong , 7 T. C. 756, 763Industrial Trust Co. v.Commissioner (C. C. A., 1st Cir.), 165 Fed. (2d) 142Helvering v.Helmholz , 296 U.S. 93">296 U.S. 93Estate of Milton J. Budlong, supra section 811 (c) and(d) .For an additional reason, it is contended that
section 811 (d) is inapplicable. This presents the second question. The clause upon which respondent relies for his conclusion that the enjoyment of the property was subject to alteration or termination through the exercise of a power by decedent is the provision permitting the trustees to transfer any part of the principal to a beneficiary after she becomes 30 years of age. At decedent's death all of the beneficiaries were under 30. The condition for the exercise of the power had accordingly not yet been fulfilled. Under authorities now too firmly established to question, a power based on such a future contingency does not suffice to bring the situation withinsection 811 (d) .Jennings v.Smith (C. C. A., 2d Cir.), 161 Fed. (2d) 74Estate of Milton J. Budlong, supra .Commissioner v.Estate *1171 , 335 U.S. 632">335 U.S. 632Estate of Spiegel v.Commissioner , 335 U.S. 701">335 U.S. 701Hallock case,May v.Heiner , 281 U.S. 238">281 U.S. 238section 811 (d) , which covers a power to alter or terminate. It thus resembles such cases asJennings v.Smith, supra .Church andSpiegel cases.Most important, these cases dealt with
section 811 (c) , while the provision we are now considering issection 811 (d) (2) . The difference in the statutory language seems to us, especially in the light of the decided cases, to carry decisive significance with respect to the time of the existence of decedent's retention.Section 811 (c) uses the language "for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death," whereas,section 811 (d) (2) employs the simple concept "at the date of his death." While it is truesection 811 (d) (3) *1172 lists some legislative tests by which this approach may be considered as modified, it does not reach the present situation. Decedent's power did not exist at his death under cases likeJennings v.Smith, supra Estate of Milton J. Budlong, supra Estate of Paul Loughridge , 11 T. C. 968, 978Church andSpiegel cases, dealing as they did with the entirely different language ofsection 811 (c) , thus seems to us confirmed. Inclusion undersection 811 (d) must accordingly be rejected.*165 The final proposition advanced by petitioner, presenting the third question, is that
section 811 (c) is equally inapplicable both because decedent could not "designate" the persons who should enjoy the income, and, second, because he did not have "the right" to exercise it. The first statement is drawn from the provisions of the trust which, while permitting the trustees to withhold income from a life beneficiary under 25, require that it either be paid to her subsequently, or added to corpus. It is insisted that a complete designation of the ultimate taker is thus withheld from the trustees. The effect, however, of an addition to principal which was within the province of decedent and his cotrustees would be to shift the enjoyment from the life beneficiary to the ultimate taker of the principal, a remainderman whose identity might be indeterminate at the time but whose rights would thereby be tentatively fixed.Estate of Milton J. Budlong, supra .Estate of John Moir , 47 B. T. A. 765section 811 (c) , which, as we have said, affects only a portion of the transfers, was proper and must be sustained.A further issue is suggested, but only briefly discussed. It has to do with the valuation employed by respondent, which included accumulations of income constituting a part of the trust corpus on the date of death. If the matter is in issue, it must be decided in respondent's favor, on authority of
Estate of Daniel Guggenheim , 40 B. T. A. 181117 Fed. (2d) 469 ; certiorari denied,314 U.S. 621">314 U.S. 621 ; cf.Commissioner v.Estate of Hager (C. A., 3d Cir.), 173 Fed. (2d) 613Estate of Spiegel v.Commissioner, supra Estate of Daniel Guggenheim, supra .Decision will be entered under Rule 50 .Footnotes
*. In computing net income, as above, there were deducted Wisconsin state gift taxes accrued against the trust of $ 7,719.76 for 1936, and $ 135.35 for 1937.↩
*. In computing net income, as above, there were deducted Wisconsin state gift taxes assessed against the trust of $ 7,609.51 for 1936, and $ 153.06 for 1937.↩
*. In computing net income as above, there were deducted Wisconsin state gift taxes assessed against the trust of $ 7,610.25 for 1936 and $ 133.50 for 1937.↩
1.
SEC. 811 . GROSS ESTATE. * * ** * * *
(d) Revocable Transfers --
* * * *
(2) Transfers on or prior to june 22, 1936. -- To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money's worth. Except in the case of transfers made after June 22, 1936, no interest of the decedent of which he has made a transfer shall be included in the gross estate under paragraph (1) unless it is includible under this paragraph.↩
2. (c) Transfers in Contemplation of, or Taking Effect at Death. -- To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (1) the possession or enjoyment of, or the right to the income from, the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this subchapter.↩
3. "* * * In the
Church case we stated that a trust transaction cannot be held to alienate all of a settlor's 'possession or enjoyment' under§ 811 (c) unless it effects 'a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property, After such a transfer has been made, the settlor must be left with no present legal title in the property, no possible reversionary interest in that title, and no right to possess or to enjoy the property then or thereafter. In other words such a transfer must be immediate and out and out, and must be unaffected by whether the grantor lives or dies.' We add to that statement, if it can be conceived of as an addition, that it is immaterial whether such a present or future interest, absolute or contingent, remains in the grantor because he deliberately reserves it or because, without considering the consequences, he conveys away less than all of his property ownership and attributes, present or prospective. In either event the settlor has not parted with all of his presently existing or future contingent interests in the property transferred. He has therefore not made that 'complete' kind of trust transfer that§ 811 (c) commands as a prerequisite to a showing that he has certainly and irrevocably parted with his 'possession or enjoyment.' * * *" [Estate of Spiegel v.Commissioner , 335 U.S. 701">335 U.S. 701↩4.
Helvering v.Hallock , 309 U.S. 106↩5. Date of existence of power. -- For the purposes of this subsection the power to alter, amend, or revoke shall be considered to exist on the date of the decedent's death even though the exercise of the power is subject to a precedent giving of notice or even though the alteration, amendment, or revocation takes effect only on the expiration of a stated period after the exercise of the power, whether or not on or before the date of the decedent's death notice has been given or the power has been exercised. In such cases proper adjustment shall be made representing the interests which would have been excluded from the power if the decedent had lived, and for such purpose if the notice has not been given or the power has not been exercised on or before the date of his death, such notice shall be considered to have been given, or the power exercised, on the date of his death.↩
Document Info
Docket Number： Docket No. 16241
Citation Numbers： 12 T.C. 1164, 1949 U.S. Tax Ct. LEXIS 145
Judges： Opper
Filed Date： 6/29/1949
Precedential Status： Precedential
Modified Date： 11/14/2024