Wright v. Commissioner

ESTATE OF MILLIE LANGLEY WRIGHT, DECEASED, JEANNETTE WRIGHT TORNEY, ADMINISTRATRIX, WITH THE WILL ANNEXED, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Wright v. Commissioner

Docket No. 99579.

United States Board of Tax Appeals

43 B.T.A. 551; 1941 BTA LEXIS 1490;

February 11, 1941, Promulgated

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1. Gifts by decedent to her daughters, the residuary legatees under her will made at about the same time, while decedent was suffering from the infirmity which resulted in her death, held, transfers in contemplation of death.

2. Value of McKesson & Robbins, Inc., stock held value established by stock exchange prices for similar shares on valuation dates, notwithstanding that such prices may have been due to concealments and misrepresentations subsequently discovered.

3. Fees for attorneys and witnesses in present proceeding held deductible from gross estate.

Edward J. Torney, Esq., Darwin Bryan, Esq., Richard E. Doyle, Jr., Esq., and Myrtile Cerf, C.P.A., for the petitioner.

T. M. Mather, Esq., for the respondent.

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OPPER

This proceeding was brought for the redetermination of a deficiency of $2,890.70 in estate tax.

The questions involved are (1) whether certain transfers of property in 1935 were gifts in contemplation of death; (2) whether stock of McKesson & Robbins, Inc., had a value for estate tax purposes equal to the amount for which such stock could have been sold on the exchange on the valuation dates, or whether the value for estate tax purposes was a lesser sum by reason of the fact of fraudulent misrepresentation of that company's assets and then undisclosed theft of substantial sums by its officers; and (3) whether the estate is entitled to a deduction of $2,500 for estimated expenses to be incurred in the present proceeding.

An issue relating to a credit for state inheritance taxes has been conceded by respondent. Other issues raised by the pleadings were waived by petitioner.

FINDINGS OF FACT.

Millie Langley Wright, deceased (hereinafter sometimes referred to as decedent), died testate November 28, 1936, a resident of California.

On December 28, 1935, decedent made gifts to her two daughters of equal interests in real estate located on Valencia Street in San Francisco, California, of a value of $20,000, and 20 shares of Oliver United Filters, Inc., "A" cumulative convertible preferred stock and 10 shares of "B" stock of a total value of $480. The deed to the real property was duly recorded. In the estate tax return prepared by Richard E. Doyle, Jr., an attorney, and executed and filed by Jeanette Wright Torney, decedent's daughter, as executrix of the estate, the above properties were included in the gross estate.

Decedent left surviving two daughters, the above mentioned Jeannette Wright Torney and Marian Wright Campbell. both were married and had seven and four children, respectively. By decedent's will, after specific bequests to or for the benefit of each of her grandchildren and each of her sons-in-law, her two daughters were named as residuary beneficiaries in equal shares, an equalizing cash bequest being provided in a case where property distribution might have caused inequality. Her will was executed on November 20, 1935.

In 1935 as well as in previous years the financial condition of Marian and her family was unsatisfactory and they were having trouble meeting their obligations. Decedent was aware of this. The deed of gift transferring the real property in question recited:

That the said party of the first part [decedent], for and in consideration of the love and affection which the said party of the first part has and bears unto the said parties of the second part [her daughters], as also for the better maintenance, support, protection and livelihood of the said parties of the second part, does by these presents give * * *.

Shortly preceding the date of the gifts in question decedent told her son-in-law, who was an attorney, that she was going to make the gifts, stating that "Marian is having a very hard time of it and I can't understand how you and Jeannette have proceeded as you have and brought up your family as you have." Her son-in-law then advised that she do it right away because of a change in the gift tax law in 1936.

Decedent gave Jeannette but a small personal Christmas gift in 1935, stating that she had given them the Valencia property and therefore there would be nothing else.

Over a long period decedent had assisted her daughters financially and given them a number of gifts. She had given each of them $25 a month for many years and had given each of them a year's trip abroad. In addition she had given Marian real property worth about $2,500, an automobile worth about $2,000, more than $200 for expenses of Marian's daughter at the University of California, and Christmas and birthday presents ranging from $50 to $300. Jeannette was also the recipient of Christmas and birthday presents ranging from $50 to $2,000, real property of a value of $10,000, and gifts of money for expenses of Jeannette's children school.

Decedent was about 79 years old at the time of her death, which was caused by senility, arteriosclerosis, and myocarditis. She had a physical breakdown in the spring of 1935, for which she was confined to the Stanford University Hospital in San Francisco from April 25, 1935, until June 8, 1935. In October of the year she suffered an emotional upset at the time of the death of her brother. After her return from the hospital she had an attendant. Jeannette took her driving nearly every day. She made a recovery from the 1935 illness and resumed her normal life until she was again taken ill in March 1936, from which illness she never recovered and died on November 28, 1936.

The estate tax return reported the cause of death as arteriosclerosis and myocarditis and the length of decedent's last illness as approximately 18 months.

The gifts in question were transferred in contemplation of death.

At the time of her death decedent owned 561 1/4 shares of McKesson & Robbins, Inc., $3 preferred cumulative convertible no par value stock and 1,421 1/2 shares of common stock of that company.

The preferred stock was selling on the New York Stock Exchange the day before and the day after decedent's death at $47 1/8 per share and the common at $14 per share. The date of decedent's death was on a holiday. The stock owned by decedent could have been sold at the times indicated for the above quoted figures.

In the estate tax return the preferred stock was reported at a value of $47 and most of the common stock was reported at a value of $14. Through error a part of the common stock was reported at $9.

The fair market value of this stock on the decedent's death was $47 1/8 per share for the preferred and $14 per share for the common.

The expenses of this proceeding for attorney's fees and witness fees will be $1,500.

OPINION.

OPPER: Our findings of fact dispose of the first issue by the ultimate determination that the property in question was transferred in contemplation of death. We have arrived at that result because of our belief that petitioner has failed to produce convincing evidence that decedent's compelling motive was associated with life rather than death. The transfers were made shortly after decedent's will was executed and disposed of her property similarly and to the natural objects of her bounty. Rengsdorff v. McLaughlin (Dist. Ct., N. Dist. Calif., S.D.), 21 Fed.(2d) 177; Travelers Bank & Trust Co., Executor,29 B.T.A. 88">29 B.T.A. 88. Decedent was at the time suffering from the physical infirmity which later carried her off. ¹ She had been confined to the hospital for some time, earlier in the same year in which the gifts were made, and had hardly dismissed the attendant employed following that illness before the death of her brother resulted in what is described as a "mental upset." Even if her physician did not warn her, and there is no evidence that he did not, it is hardly probable that the sequence of events could have failed tp impress upon her the seriousness of her condition. See Travelers Bank & Trust co., Executor, supra;Rebecca Luscomb et al., Executors,9 B.T.A. 1070">9 B.T.A. 1070; affd. (C.C.A., 2d Cir.), 30 Fed.(2d) 818. She was again stricken a few months after the execution of the will and the transfer of the property and death occurred about six months later.

The only suggestion of a motive not describable as contemplation of death is testimony to the effect that decedent expressed a desire to relieve that financial distress of one of her two daughters. But this condition is shown to have been of long standing and no effort is made to account for the bestowal of so large and unusual a generosity at that particular time. Moreover, although only the pecuniary straits of one of the daughters is shown, the gift was made equally to both. And, while decedent was evidently in the habit of making comparatively small contributions to both of her daughters from time to time, this one was many times larger than anything that had been given to the daughter in question on any previous occasion. It was quite the opposite, therefore, of a mere continuation of decedent's previous practice. Wendell W. Fish et al., Executors,27 B.T.A. 1002">27 B.T.A. 1002; affd. (App. D.C.), 75 Fed.(2d) 769. Taking the evidence as a whole, we remain unconvinced that the transfers were not made in contemplation of death. The respondent must, therefore, be sustained.

The second issue involves the valuation for estate tax purposes of preferred and common shares of McKesson & Robbins, Inc. Although the provision of the statute ² which we are here required to apply uses the single word "value," it is apparently agreed by both parties that its meaning is "fair market value." Ithaca Trust Co. v. United States,279 U.S. 151">279 U.S. 151. And such is the purport of respondent's regulations. Regulations 80, art. 10(a).

The stock in question was traded on the New York Stock Exchange and there is no dispute that respondent's valuation is proper if, under the circumstances, such quotations are the appropriate measure of fair market value. Petitioner, however, advances the apparently novel ³ contention that these prices were the result of misrepresentations and concealments of which purchasers and sellers on the Exchange were at that time unaware. For this reason we are urged to find a value for the stock entirely independent of the figures at which it was actually bought and sold during the critical period.

If we were seeking to fix a fair value, rather than a market value which is fair, such considerations would not be without appeal. Cf. Boyd v. Wyly,124 U.S. 98">124 U.S. 98, 106; Buck v. Commissioner (C.C.A., 9th Cir.), 83 Fed.(2d) 786. That this stock, however, had a market value is conceded, and it must be further recognized that the very shares owned by this estate could have been sold at the quoted prices. Indeed, the only market prices shown are those employed by respondent. Petitioner insists that the market value could not have been fair if based upon general misconception as to the underlying facts. But this goes beyond what we conceive to be the significance of the aspect of fairness as it modifies the existence of market value. It may be that a showing of general market prices is not a demonstration of the fair market value of a particular block of stock where it can be shown that general conditions or those affecting particularly the sales which have actually transpired do not "fairly" reflect the circumstances surrounding the specific property to be valued. Such a thought is expressed in Heiner v. Crosby (C.C.A., 3d Cir.), 24 Fed.(2d) 191, a case cited by petitioner, as follows:

* * * Sales are always evidence of a market price, but the statute requires that, in "ascertaining the gain derived from the sale," there must be not simply a "market price," but a "fair market price". * * * Sales made under peculiar and unusual circumstances, such as sales of small lots, forced sales, and sales in a restricted market, may neither signify a fair market price or value * * *.

Of this the familiar "blockage" rule is another example. Estate of Leonard B. McKitterick,42 B.T.A. 130">42 B.T.A. 130.

But here there was nothing "peculiar" or "unusual" about either the actual transactions on the Exchange or the situation in which the estate found itself. Its securities could have been sold, and would have been had they been offered, under identical circumstances and at a comparable price with all of the stock which actually was traded in. What petitioner's position would require us to hold, therefore, is that a universally accepted market price, the result of numerous transactions in which the general public freely participated, should be disregarded because more than two years later concealed facts were disclosed which, had they been known, might have created a different market from that which the facts show actually existed. This does not prove that the market did not exist or that the sales did not take place. Nor does it show that they did not fairly evaluate petitioner's stock at the time. We think it unnecessary to proceed so far in applying the phrase "fair market value." And the administrative and judicial difficulties which would be involved in the adoption of any different rule convince us that petitioner's position is untenable. If it were always necessary to discover whether every material fact was known to the public before stock exchange prices could be relied upon in fixing fair market value, and indeed to determine what factors are and what are not material in the operations of the whole body of the trading public, it would, we think, be impossible for administrative officers or taxpayers to make an intelligent approximation of their own situation. Nothing in the position of petitioner or others similarly situated requires any such result.

If, in fact, our determination were to be affected by equitable considerations, we think the same result would be required. ⁴ Suppose, for example, that petitioner had actually sold the securities within a reasonable time after her decedent's death. Assuming a very much lower "true" value for the stock at the date of death, would petitioner be liable for the staggering capital gain which would then result from the difference between the actual market and the valuation adopted for estate tax purposes? And would this be so, even though, as would then be the fact, the actual market was unchanged between the two dates? We think it could never have been intended that an article which could fairly and honestly be sold on an open and public market at a price reasonably constant for a long period of time should be given a different value by reason of any such circumstances as those shown here to exist. See Estate of Leonard B. McKitterick, supra.Respondent's determination is approved.

On the final issue it is shown that petitioner has become obligated for attorneys' fees and other expenses in connection with the settlement of the estate. There is no countervailing proof on behalf of respondent. Petitioner is sustained on this point. Otis Weld Richardson et al., Executors,1 B.T.A. 1196">1 B.T.A. 1196.

Decision will be entered under Rule 50.

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Footnotes

• 1. The cause of death and length of last illness, as given on the estate tax return, was "Arteriosclerosis and myocarditis Approximately 18 months." ↩

• 2. Sec. 302, Revenue Act of 1926. ↩

• 3. The only case relied on as a precedent is one construing a California statute, In re Spitly's Estate,124 Cal. App. 642">124 Cal.App. 642; 13 Pac.(2d) 385↩.

• 4. See Hughes, Federal Death Taxes, p. 270:

  "* * * If a farmer died leaving valuable farm lands, and oil, which was unknown to exist on it at the time of his death, should be subsequently discovered, that could not be used to increase the known value at the time of his death. Similarly, if at the time of a taxpayer's death, the quoted market prices were at a depression low, it would be as logical for the Treasury to claim that they were not fair prices as it would be for a taxpayer to claim that inflated quotations were not fair prices." ↩