DocketNumber： Docket No. 4621.
Citation Numbers： 9 B.T.A. 486, 1927 BTA LEXIS 2575
Judges： Mokeis, Siefkin, Murdock
Filed Date： 12/6/1927
Status： Precedential
Modified Date： 1/12/2023
*2575 Trust created by decedent four years prior to his death
*486 This is a proceeding for the redetermination of a deficiency in the estate tax of the estate of Herman Scheuer in the amount of $14,430.34. The error assigned was the act of the Commissioner in including in the gross estate for the purpose of taxation the sum of $275,250.63, the value of assets which he held were transferred by the deceased in contemplation of death within the meaning of section 402(c) of the Revenue Act of 1918.
FINDINGS OF FACT.
The petitioners herein are the duly qualified executors of the last will and testament of Herman Scheuer, who died November 11, 1921. On October 10, 1917, more than four years before his death, the decedent, who was then 69 years of age, transferred certain assets, valued at the time of his death at $275,250.63, to the Central Union Trust Co. of New York, in trust for the benefit of his wife during her life; at her death, two-thirds of the corpus of the trust to go, in equal proportions, *2576 to the two sons of the deceased and the remaining onethird to be continued in trust for the benefit of the decedent's daughter.
*487 For many years prior to his death the decedent was engaged in the manufacture and sale of leather goods, having a factory located in Brooklyn, N.Y., and executive and sales office in Manhattan. His two sons became partners with him in the business - Jacob H. Scheuer about 1900, and Alwin J. Scheuer in 1905. The partnership was known as Herman Scheuer & Sons.
The decedent's death was caused by the clogging of his coronary arteries. Thickening artery walls interfered with the flow of blood and finally caused a clot to form. At the time the decedent made the trust deed and transferred the securities in question, his physical condition was the same as it had been for some years previous to that date. He had experienced no acute illness and showed no alarming symptoms. The family physician saw the decedent on an average of twice a month and considered him to be in no more danger of death in October, 1917, than the average person of his age. The decedent had several minor ailments and a tendency towards low blood pressure, and his physician*2577 had advised him, as he had advised all of his elderly patients, to be careful and to avoid overexertion, but he never considered him to be in any immediate danger of death and never had occasion to tell him that he was in any such danger. The physician made 13 visits to the decedent's home from April 1, 1917, to October 10, 1917, but was unable to say how many of these visits were calls upon the decedent, as the latter's wife was ill during this period and was under his care also. Some years prior to 1917, the decedent had lost a leg by amputation, as a result of an accident and thereafter, due to his consequent inability to take as much exercise as a normal person, he was not robust. However, he was not particularly frail and he was not in any great danger until his last illness which developed two or three weeks before his death.
During 1917 and the several preceding years the decedent was greatly disturbed by what he thought were very high personal property taxes in the State of New York. In 1916 he had been assessed at $1,000,000 and had made several efforts to have the amount reduced. When he made the deed of trust he told his wife that he thought it would be best to divide*2578 his property in order to reduce his taxes and that he was making this trust in her favor with that in mind.
The deed of trust was several weeks in the course of preparation before it was finally signed on October 10, 1917. Coincident with the deed of trust the decedent executed a new will, the terms of which were not presented in evidence. About October 1, 1917, he had a new partnership agreement drawn up, which was signed by him and his two sons although the latter were not consulted in regard to the agreement before it was presented for their signatures. By the *488 terms of this agreement each of the three partners agreed to contribute to the partnership the sum appearing on the capital account of the partner on the books of the firm and each was to receive interest upon his share of such capital at the rate of 6 per cent per annum, to be charged as a business expense. By the terms of the agreement the decedent was not entitled to share in the partnership profits, except for the interest on his investment, and was not to be called upon to do any work in connection with the partnership business. He was to be known as an inactive partner.
For some time before the*2579 execution of the agreement, the decedent had been in the habit of telling his sons that he was not performing his share of the work and, therefore, would not want to share in the profits, and in January, 1917, his sons agreed to permit him to divide his share of the 1916 profits among his three children in the nature of a gift. This was accordingly done. In January, 1918, he made out checks to his sons for his share of the 1917 profits, but the latter did not accept them. He continued to go to the office after October, 1917, as regularly as before and continued to perform his accustomed duties there until several weeks before his death. These duties were to attend to a part of the correspondence, to advise regarding purchases and the general policy of the business, and to consult occasionally with the firm's clients. He also kept the time book of those of the firm's employees who worked by the hour, the entries in which were made from time cards. These entries he made every Friday upon the time book and computed therefrom the employees' wages. The entries appear in the decedent's handwriting until October 28, 1921. He also continued, in company with his wife, to visit his friends*2580 and to attend the theatres and other entertainments. He always seemed to be in good spirits and of a jovial disposition. In 1917, the decedent and his wife moved to a new apartment for which he executed a three-year lease. Upon the expiration of this lease, he entered into a new lease for the same premises for three years, dated February 17, 1920, which was canceled later during the year, and the decedent and his wife moved into another apartment for which he executed a lease dated July 28, 1920.
OPINION.
MURDOCK: The question presented for decision in this case is whether the transfer on October 10, 1917, of certain assets by the deed of trust of Herman Scheuer was made in contemplation of death, within the meaning of section 402(c) of the Revenue Act of 1918.
*489 Herman Scheuer, the decedent, died November 11, 1921, more than four years after the transfer, and, therefore, no presumption arises under the provisions of the section in question that the distribution was made in contemplation of death.
In ; *2581 5 Am.Fed. Tax Rep. 5899, it is said:
In the construction of a taxing statute, doubts should be resolved against the government and in favor of the taxpayer.
Therefore, in the absence of the presumption above referred to, the amount of the assets transferred by the deed of trust can not be included in the decedent's gross estate where it appears that the motive for the transfer was not a specific expectation, or a reasonable fear, that death was near at hand. ; ; or, as it has been stated in one case, "It is only when contemplation of death is the motive, without which the conveyance would not be made, that a transfer may be subjected to the tax." ; . And undoubtedly, if it is shown that the decedent was actuated by other motives than a present expectation of death, the assets transferred are*2582 not taxable.
In arriving at the decedent's motive for the transfer we must not be limited by his intentions as expressed at the time, although such evidence is of primary importance. All the facts and concomitant circumstances surrounding the deed of trust, the physical condition of the decedent and his natural expectancy of life and also his conduct and actions about the time the transfer was made, are important considerations in construing his true motive.
The decedent was a man 69 years of age, considerably past the prime of life, but in no more danger of death than the average person of his age. He was not an active man due to the fact that he had lost a leg in an accident, but neither this injury nor his general physical condition prevented him from attending to his duties at his place of business at the time of the transfer and until several weeks before his death four years later. He and his wife had periodic calls from the family physician, but, if the latter's testimony is to be believed, and we see no reason to doubt it, the decedent's physical condition*2583 was no worse than the average for his age and he was not advised of any danger of death being near at hand. His condition at the time was the same as it had been for some years previously. These facts as to his physical condition do not indicate that the *490 decedent, in making the transfer, was influenced by an expectation of death.
Ten days before the execution of the deed of trust, the decedent entered into a new partnership agreement with his two sons wherein he stipulated that he was not to be called upon to do any work in connection with the business or to receive any of the profits. But, after the execution of the agreement the duties he performed differed in no way from those previously undertaken. Coincident with the deed of trust he also executed a new will, the terms of which are not in evidence. Having made the trust deed which substantially changed his property holdings and provided for his wife, it is not surprising that he wanted to change his will accordingly. These facts do not indicate that he was expecting death in the reasonably near future and it is this expectancy, or contemplation of death, which the statute requires. See *2584 , wherein the Board states:
We have heretofore had occasion to review the authorities and discuss the meaning of the phrase "contemplation of death." ; . There we reached the conclusion that it did not include the general contemplation of death entertained by everyone, but did include a state of mind which looked forward to death within the reasonably near future.
About the time the transfer was made he executed a three-year lease for a new apartment, and in the spring of 1920, again executed a lease for another apartment for a term of three years. He continued to perform his work in connection with the business to the same extent that he had before the transfer and, together with his wife, continued to call upon their friends and to attend the theatres and other entertainments. He was generally in good spirits, and no change in his work, mode of life and general social activities was noticed, either at or after the time of the execution of the deed of trust. These facts rather indicate*2585 that he had no expectation of death in the near future. Finally, we have before us evidence of his desire to so arrange his affairs that his personal property would be relieved of some of the State tax and his income would be relieved of the increasing burden of the Federal income tax.
The new partnership agreement and the deed of trust would reduce his tax burdens. In , we had a somewhat similar situation and in this case as in that one we are convinced that the trust was not created in contemplation of death.
Considered by MORRIS and SIEFKIN.