DocketNumber： Docket No. 75103.
Citation Numbers： 34 B.T.A. 11, 1936 BTA LEXIS 763
Judges： Matthews
Filed Date： 3/4/1936
Status： Precedential
Modified Date： 11/21/2020
1936 BTA LEXIS 763">*763 1. Subsequent to the enactment of the Revenue Act of 1926 the decedent executed five certain trust indentures, reserving to himself the power to alter, amend, or revoke, with the concurrence of the beneficiary, the trusts therein contained.
2. Additional attorneys' fees which have been contracted for but not yet paid, where the amount claimed represents a reasonable charge for the additional services rendered by the attorneys for the decedent's estate and the total fees are comparable in amount to counsel1936 BTA LEXIS 763">*764 fees previously allowed by the probate court in the case of similar estates,
3. The total balance due on three certain pledges made by the decedent in his lifetime to charitable and educational institutions, in consideration of the monetary pledges of others,
34 B.T.A. 11">*11 The respondent determined a deficiency in estate tax in the sum of $100,313.15. The petitioners contend that instead of there being a deficiency there has been an overpayment of the tax in the amount of $2,586.30. In an amended answer the respondent avers that the erroneously allowed as deductions from the gross estate of the decedent certain items amounting to $23,500 and claims an increase1936 BTA LEXIS 763">*765 in the deficiency on account thereof. The issues for determination 34 B.T.A. 11">*12 are: (1) Whether the corpus of five certain trusts created by the decedent during his life are includable in the decedent's gross estate under section 302(d) of the Revenue Act of 1926 or, on affirmative allegations made by the respondent in his answer with respect to these trusts, under section 302(a) or (c); (2) whether deductions are allowable with respect to (a) attorneys' fees in connection with the administration of the estate, which have been estimated and contracted for but not yet paid, and (b) the balance due on pledges made by the decedent during his lifetime to certain charitable and educational institutions; (3) to what extent credits against the Federal estate tax are allowable with respect to inheritance and estate taxes paid to the States of Pennsylvania and New Jersey.
The case was submitted on a stipulation of facts to which certain documents were attached as exhibits and made a part thereof. Only such facts as we deem pertinent to our descussion of the issues will be set forth in our findings.
FINDINGS OF FACT.
Charles Day, a resident of Philadelphia, died testate on May 10, 1931. 1936 BTA LEXIS 763">*766 He was born on May 15, 1879, and was consequently at his death near the completion of his fifty-second year. He left surviving him, his mother, Frances D. Day, then aged 81, his sister, Bertha C. D. Bates, his widow, Margaret, then aged 52, and three children, Charles Corson, aged 25, William L., aged 23, and Margaret Dunning, aged 15.
The petitioners herein are the duly appointed, qualified, and acting executors and trustees under the will of the decedent, Charles Day.
During his lifetime the decedent created five trusts, none of which was created in contemplation of death and each of which contained a provision reserving to the decedent as settlor the power to alter, amend, or revoke, with the consent of the beneficiary, the trusts therein contained. These five trusts were created by the decedent, as follows:
1.
By an indenture dated January 13, 1928, the decedent transferred certain securities in trust to the Fidelity-Philadelphia Trust Co. as trustee, under the following terms and conditions.
The trustee was to manage the trust
1. To the Settlor1936 BTA LEXIS 763">*767 for and during all the term of his natural life;
2. Thereafter to Margaret Day, wife of the Settlor, so long as she shall live;
34 B.T.A. 11">*13 3. After the death of both the Settlor and said Margaret Day, to pay the said net income, in equal shares, to Charles C. Day, William L. Day and Margaret D. Day, children of said Settlor, during their respective lives.
There were other provisions with respect to the powers of the trustee and the appointment of the decedent's two sons as cotrustees upon the decedent's death. Provision was also made for the ultimate disposition of the trust corpus. With respect to the decedent's power to revoke it was provided as follows:
The question having been submitted to the said Settlor as to whether the trusts under this instrument shall be revocable or irrevocable, he has determined that they shall be revocable only if altered, amended or revoked by the joint action of himself and his wife, Margaret Day, as evidenced by an instrument in writing under their hands and seals and intended to take effect in the lifetime of the said Settlor, otherwise to be irrevocable.
At the time of the decedent's death the value of the securities thus transferred1936 BTA LEXIS 763">*768 was $660,719.37.
On February 5, 1931, the decedent and his wife executed an instrument by which, after reciting the power reserved by the settlor to alter, amend, or revoke the trusts under the indenture dated January 13, 1928, by the joint action of himself and his wife, and declaring the settlor's intention to modify in part the uses and trusts therein contained, "the terms and conditions of said indenture to otherwise remain unchanged", it was provided:
NOW, THEREFORE, in exercise of the power reserved in him by the Indenture aforesaid, dated January 13, 1928, the said Settlor, with the concurrence and approval of the said Margaret Day, as evidenced by her joinder herein, does hereby revoke and make null and void sub-division "1" of Clause "1" of the said Indenture providing for the payment of the income from the said fund to himself during his natural life to the end that the income from the said fund shall be payable to Margaret Day, wife of the said Settlor, from this date forward, during her life with remainders over as in the said Indenture recited.
2.
On November 1, 1929, the decedent executed an indenture by which he transferred to the same1936 BTA LEXIS 763">*769 trustee certain securities in trust for his mother, under the following terms:
IN TRUST to take, hold, manage and control and to invest and keep invested and the net income therefrom to pay at monthly intervals to Frances C. Day, mother of the said Settlor, for and during all the term of her natural life, and at her death.
IN TRUST to pay over the corpus or principal thereof to the said Settlor, if living, or to his legal representatives if he be then deceased.
The trustee was given full powers of management, which powers were to be exercised with the settlor's consent in his lifetime and after his death with the consent of his sons. There then followed this provision:
PROVIDED, however, that the said Settlor, with the concurrence of the said Frances C. Day, shall have the right at any time during his lifetime, at his 34 B.T.A. 11">*14 discretion, by any instrument executed under his hand and seal and intended to take effect in his lifetime, to alter, revoke or change all or any of the trusts herein declared and with further power in the said Settlor to direct the transfer, conveyance and payment of all or any part of the above-mentioned property held in trust, by any such instrument1936 BTA LEXIS 763">*770 in writing, to such persons and for such uses as to said Settlor may seem fit, it being the intention to vest in the said Settlor the power to revoke, with the concurrence and assent of the said Frances C. Day, as above provided, all or any part of the trusts herein declared; and to make such new uses and trusts as to him shall seem fit.
The value of the securities thus transferred was $126,132.94 at the time of the decedent's death.
On May 4, 1931, the decedent and his mother executed an instrument by which, after reciting the power reserved to the settlor, with the concurrence of his mother, to alter, revoke, or change all or any of the trusts declared in the indenture dated November 1, 1929, and declaring the settlor's intention to revoke the uses and trusts therein set forth and to make new uses, "the terms and conditions of said indenture to otherwise remain unchanged," it was provided:
NOW THEREFORE, in exercise of the power so reserved in him by the indenture aforesaid, the said Settlor, with the concurrence and approval of his mother, Frances C. Day, does hereby revoke and make null and void the uses and trusts in said Indenture contained, and directs that the fund1936 BTA LEXIS 763">*771 so assigned shall be held by the said Trustee upon the trusts following:
IN TRUST to hold, manage and control and to invest and keep invested and the net income therefrom to pay to Frances C. Day, mother of said Settlor, at monthly intervals during all the term of her natural life, and at her death,
IN TRUST to devide the corpus or principal thereof into three (3) separate parts or shares and to add one of such parts or shares to each of the trusts created by the Deeds of the said Settlor, Charles Day, executed the Twenty-first day of August, A.D. 1930, for the benefit of his three children, Charles Corson Day, William L. Day, and Margaret Dunning Day, with remainders over to their appointees or descendants or otherwise as set forth in the three separate Deeds or Indentures above referred to.
3.
On August 21, 1930, decedent executed three indentures by which he transferred to the same trustee certain securities in trust, respectively, for his three children, Charles Corson Day, William L. Day, and Margaret Dunning Day.
The transfers in trust for the two sons were identical in language except for the name of the beneficiary. The terms and1936 BTA LEXIS 763">*772 conditions of the trust for the elder son, Charles Corson Day, were as follows:
IN TRUST to take, hold, manage and control and to invest and keep invested and the net income therefrom to pay at monthly or other convenient periods to Charles Corson Day, son of the said Settlor, for and during all the term of his natural life, and at his death.
IN TRUST to pay over, assign and transfer the corpus or principal thereof to such person or persons and upon such estate or estates as he, the said Charles Corson Day, shall by his last Will and Testament direct, limit and 34 B.T.A. 11">*25 appoint, but in default of such appointment, to the then living descendants, per stirpes, of the said Charles Corson Day, absolutely.
IN TRUST should the said Charles Corson Day fail to exercise the power of appointment hereinabove given him and die without leaving descendants him surviving to pay over, assign and transfer the corpus or principal of the within created trust estate to those who would have become entitled thereto under the laws of the State of Pennsylvania had he, the said Charles Corson Day, died possessed thereof, intestate, unmarried and without issue.
In each of these trusts for the sons1936 BTA LEXIS 763">*773 the provision with respect to the decedent's power to revoke was in exactly the same terms as the corresponding provision contained in the trust created for his mother.
At the time of the decedent's death the value of the corpus of this trust was $64,695; on the same date the value of the corpus of the trust for the second son, William L. Day, was $64,082.50.
The terms and conditions of the trust created by the decedent for his daughter were, as follows:
IN TRUST to take, hold, manage and control and to invest and keep invested and the net income therefrom to apply at monthly or other convenient periods towards the maintenance, education and support of Margaret Dunning Day, daughter of the said Settlor, during her minority; the receipt of the father of said minor or, at his death during her minority, the receipt of the mother of said minor or of such other person as may be selected for the disbursement thereof to be a proper acquittance for the income so applied.
IN TRUST, when and as the said Margaret Dunning Day shall attain the age of twenty-one (21) years, to pay the said net income to her so long as she shall live, and at her death, * * *.
with like provisions for1936 BTA LEXIS 763">*774 the disposition of the principal as were contained in the trusts for the sons.
In this trust for the daughter the provision with respect to the decedent's power to revoke differed from the corresponding provision contained in the trusts created for the sons only in that the words "after she shall have attained majority" were added after the name of the beneficiary.
At the time of the decedent's death the value of the corpus of this trust was $64,072.50.
The decedent's daughter, Margaret Dunning Day, the beneificary of the last trust, was 15 years of age at the time of the decedent's death, and under Pennsylvania law will attain her majority on her twenty-first birthday, March 1, 1937.
In the administration of the decedent's estate the petitioners herein have paid a counsel for of $5,000 for services rendered up to the end of 1932, which amount has been allowed by the respondent in computing the decedent's net estate. By reason of additional services already rendered and to be rendered by their attorneys, petitioners will be obliged to expend an additional sum of at least $15,000 34 B.T.A. 11">*16 for counsel fees to cover such services, and they have agreed to and will pay such1936 BTA LEXIS 763">*775 additional sum of not less than $15,000 to the attorneys for the decedent's estate. This sum of at least $15,000 constitutes a reasonable additional charge for the additional services rendered and to be rendered by the attorneys for the estate, and the total counsel fees so paid and to be paid are comparable in amount to counsel fees previously allowed in similar estates by the Orphans' Court for the County of Philadelphia, State of Pennsylvania, having jurisdiction thereof.
The decedent, during his lifetime, made three certain pledges or subscriptions to charitable and educational institutions under the following circumstances:
(a) On June 9, 1930, decedent and his wife "in consideration of the gifts of others" subscribed $5,000 "payable during 1930" to the Benjamin Franklin Memorial, Inc. Decedent and his wife paid $2,000 of this amount before his death. No consideration other than that set out in the printed form on which the pledge was made passed between the parties.
(b) On October 28, 1930, the decedent "in consideration of the subscriptions of others" subscribed $6,000 to the Welfare Federation of Philadelphia, payable in equal quarterly installments of $1,500 each, 1936 BTA LEXIS 763">*776 beginning January 1, 1931. The decedent paid $3,000 of this sum before his death. No consideration other than that stated in the sbuscription agreement passed between the parties.
(c) The following underwriting agreement in favor of the Pennsylvania Museum of Art was executed by decedent:
WHEREAS the Pennsylvania Museum of Art has undertaken to obtain a fund approximating $2,000,000 by means of an underwriting agreement for the purchase of the Foulc Collection of Mediaeval and Renaissance Art and other collections and individual works of art needed to round out its exhibits; and
WHEREAS it is stated by the highest authorities that it would be practically impossible now to get together another such collection of equal merit and value covering the same periods in art; and
WHEREAS it is the expressed intention of the Trustees of the Museum to utilize the funds made available by this underwriting agreement for the purchase of works of art that are essential to the Museum's exhibits and which have been passed upon by competent authorities;
Now, therefore, we the undersigned hereby agree with each other and with the Pennsylvania Museum of Art to insure the amounts set opposite1936 BTA LEXIS 763">*777 our respective signatures, payable 20 per cent upon call of the Museum and the balance in installments of not more than 10 per cent at intervals of not less than one year.
It is understood that the committee in charge of raising funds for the Museum will continue its work and that all unrestricted funds so raised will be applied to reducing or cancelling the liabilities of the underwriters created by this agreement.
It is also agreed by the Museum that it will apply to the same purpose all unrestricted bequests hereafter received.
34 B.T.A. 11">*17 In the collection of funds for the reduction or cancellation of the above liabilities it will be the purpose of the committee to allow specific objects contained in these collections to be credited as gifts from those who may wish to contribute the cost of specific objects in the collections.
On this the decedent paid before his death the sum of $7,500, leaving a balance owing at date of death of $17,500. This agreement was one of 20 similar underwriting agreements executed by 20 individuals, including the decedent, for varying sums from $1,000 to $200,000 each, aggregating a total underwriting of $890,000. Two of the 20 underwriters1936 BTA LEXIS 763">*778 immediately paid off their underwritings aggregating $7,000, leaving underwritings aggregating $883,000, but which at February 8, 1930, had been reduced by payments thereon to $726,400. This collection cost $1,100,000, which was made in two payments - one on January 10, 1930, in the amount of $350,000; and the second and final payment made on February 10, 1930, in the amount of $750,000. In order to make the final payment, the Pennsylvania Museum of Art borrowed $739,000 from a banking syndicate consisting of the Girard Trust Co., the Fidelity-Philadelphia Trust Co., the Pennsylvania Co. for Insurances on Lives & Granting Annuities, and the Provident Trust Co., for which the said museum gave its promissory note dated February 8, 1930, and payable February 8, 1938, with interest at 6 percent per annum, secured by an assignment by the museum of 18 of the aforementioned underwriting agreements aggregating a net sum of $726,400, including that of the decedent, and the bill of sale transferring title to the collection to the Girard Trust Co. as trustee for itself and the other banks above named as long as any balance of the loan remained unpaid. Subsequently four of the underwriters1936 BTA LEXIS 763">*779 (not including the decedent) paid off their obligations in full for a total amount of $330,000. The loan owing by the museum to the aforesaid banks, having been reduced by payments on account, now amounts to $255,694.
At the date of decedent's death, calls had been made on account of the underwriting agreements of 30 percent. Since that date, three calls of 10 percent each have been made thereon. By the terms of the underwriting agreements, including that executed by Charles Day, the decedent, the Pennsylvania Museum of Art agrees to use all unrestricted funds raised by it or unrestricted bequests received by it toward reducing or canceling the liability of the underwriters created by the agreements. Since the day the underwriting agreements became effective in 1930 the museum has received only $5,000 of unrestricted funds by either gift or bequest, and this $5,000 was paid over to the banks in reduction of the museum's loan. There is no immediate possibility of the museum receiving other gifts or bequests of unrestricted funds which could be used toward repaying 34 B.T.A. 11">*18 the money so far advanced by or to be received from the underwriters. No consideration, other than that1936 BTA LEXIS 763">*780 expressly stated in the underwriting agreements and in the above mentioned facts, passed from the Pennsylvania Museum of Art to the decedent or from any person or persons to the decedent in connection therewith.
The three above named institutions were and are corporations organized and operated exclusively for charitable, scientific, literary, and/or educational purposes, no part of the net earnings of which inures to the benefit of any private stockholder or individual, within the meaning of section 303(a)(3) of the Revenue Act of 1926.
The petitioners duly filed a return of the estate tax showing a net estate of the value of $2,066,562.02, and a total estate tax of $140,156.20, against which credit to the extent of 80 percent thereof was claimed for state estate, inheritance, legacy, or succession taxes in the amount of $112,124.96, making the amount of Federal estate tax payable, after subtracting such credit, $28,031.24. On May 10, 1932, petitioners paid the tax of $28,031.24; this tax was paid within three years before March 15, 1934, on which date the petition herein was filed.
The petitioners did not include in the gross estate any of the property transferred in trust, 1936 BTA LEXIS 763">*781 and took deductions for the charitable pledges in the amount of $23,500. They now claim a deduction of $15,000 as additional attorneys' fees, which is the basis for the claim that there has been an overpayment of $2,586.30. The respondent allowed the deduction of $23,500 claimed on account of the charitable pledges and determined a net estate of a value of $2,924,976.81, which included in the five transfers in trust made by the decedent in his lifetime of a total value at decedent's death of $979,702.31. On this basis respondent determined a gross tax of $230,247.45, which, less a credit of $101,903.06 for state estate and inheritance taxes, resulted in a net tax of $128,344.39. Inasmuch as petitioners had already paid the sum of $28,031.24 the respondent determined a deficiency in estate tax in the amount of $100,313.15. By an amended answer respondent seeks to increase this deficiency by disallowing the deduction of $23,500 on account of the charitable pledge.
OPINION.
MATTHEWS: The principal issue for determination is whether the respondent erred in including in the decedent's gross estate the value of the property covered by the five trusts created by the decedent during1936 BTA LEXIS 763">*782 his lifetime. It will be observed that all of these trusts were created subsequent to the enactment of the Revenue Act of 1926, the statue here applicable, so that no question of unconstitutional retroactivity arises. Cf. ; . None of the trusts was created in contemplation 34 B.T.A. 11">*19 of death and each contained a provision by which the settlor reserved the power to alter, amend, or revoke, with the concurrence of the beneficiary, the trusts therein contained. This power to revoke was not exercised or relinquished by the decedent during his life in respect of either trust made for his two sons, and it is not questioned that it remained in full force and effect until the decedent's death. Our first question, therefore, is whether the cessation of this power at death was the cessation of such substantial control over the property of these two trusts as to warrant their inclusion in the decedent's gross estate.
Any doubts which may have existed upon the inclusion of such an interest have been put at rest by the Supreme Court's recent decision in 1936 BTA LEXIS 763">*783 . In that case the husband was a beneficiary to the extent of a life interest, following the settlor's, and to the extent of the corpus if he should survive the settlor's two daughters. The husband survived the settlor, the trust continuing in force. "The trust was irrevocable", the Supreme Court said, "save that the settlor reserved the right to modify, later or revoke it, in whole or in part, or to change any beneficial interest, any such revocation or alteration to be effected with the written consent of the trustee and her husband or, if the husband were dead, of the trustee and her brother." Although it was argued on behalf of the taxpayer that section 302(d) of the Revenue Act of 1926 1 should be construed in the light of section 219(g), which would amount to adding to the phrase "in conjunction with any person" the words "not a beneficiary of the trust", it was pointed out by the Supreme Court that the language was plain and its clear intent could not be disregarded. The Court held that there was nothing unreasonable or arbitrary in the provisions of section 302(d) and that where, subsequent to the1936 BTA LEXIS 763">*784 passage of the Revenue Act of 1926, the creator of a trust estate saw fit to reserve to himself jointly with any other person the power of revocation or alteration, the transaction should be treated for the purposes of the law as intended to take effect in possession or enjoyment at the death of the settlor.
We are of the opinion, therefore, that the value of the trusts created by the decedent for his two sons was properly includable in his gross estate.
1936 BTA LEXIS 763">*785 34 B.T.A. 11">*20 In the trust for his daughter, created the same day as those for her brothers, the income was to be paid to her for life from the date of her majority (March 1, 1937), with remainder as she should appoint, or to her heirs. During her minority the trustee was to apply the trust income towards her "maintenance, education and support", the receipt therefor of her father, the settlor, or of her mother being a proper acquittance to the trustee. The power to alter or revoke was reserved in the same terms as were used in the trusts for the decedent's sons except that in the provision relative to the concurrence of the beneficiary the words were added, "after she shall have attained majority." This power remained unexercised at the time of decedent's death.
The petitioners contend that the decedent had no power to revoke at the time of his death in 1931, since at that time his daughter had not reached her majority and the power to revoke would not spring into being until she could concur in its exercise. This is a matter of construction and we can not agree that this is a normal construction of the actual words used or, even if the words should be thought ambiguous, that1936 BTA LEXIS 763">*786 it would be a reasonable construction to put on decedent's intention in all the circumstances. The clause, "with the concurrence and assent of the said Margaret Dunning Day after she shall have attained majority", would seem to be a limitation on the decedent's power only when and after his daughter should have reached her majority, leaving the decedent's power to revoke during her minority free and untrammeled. It would have been idle to put in the concurrence of his daughter while she was still a minor, and it is not likely that the decedent would have put beyond himself a full control of her interests while he was still her natural guardian. Everything points to an absolute power of revocation in the decedent during his daughter's infancy, which was to be limited by her concurrence only after she had reached years of discretion.
We are of the opinion, therefore, that the decedent's power to revoke was unconditioned in respect of the trust for his daughter at the time of his death, and hold that its value was properly includable in his gross estate.
We shall next consider the two trusts the uses of which were changed by the decedent in accordance with the power to alter1936 BTA LEXIS 763">*787 or revoke reserved by him as settlor. In the case of the trust for his wife, the original trust indenture provided that the trustee should pay the net income to the decedent for life, then to his wife for life, then to his three children equally for their lives with a gift over of the remainder to their appointees. On February 5, 1931, the decedent exercised, by a written instrument executed by himself and his wife jointly, his power to alter the original trust with his wife's concurrence and revoked the provision with respect to paying the 34 B.T.A. 11">*21 income to himself for life, "to the end that the income from the said fund shall be payable to Margaret Day, wife of the said Settlor, from this date forward, during her life with remainders over as in the said Indenture recited." No other alteration or amendment was made by the decedent, it having been expressly recited in the instrument dated February 5, 1931, that it was the intention of the settlor "to modify in part the uses and trusts in said indenture contained as hereinafter recited, the terms and conditions of said indenture to otherwise remain unchanged."
We are of the opinion that the value of the property so transferred1936 BTA LEXIS 763">*788 in trust by the decedent is includable in the decedent's gross estate. The modification in part of the uses and trusts contained in the original trust deed, by revoking that portion which provided that the settlor should receive the net income for his life, did not amount to an exhaustion of the powers reserved to the settlor in the original deed. Indeed, the provisions of the original deed were expressly reaffirmed in that the terms and conditions thereof were not to be changed, except for the modification in the one particular which was accomplished under the instrument dated February 5, 1931, by revoking the life interest of the settlor. The settlor still retained the power, with the consent of his wife, to make any desired alterations or amendments with respect to the remaining uses and trusts contained in the original deed and there was no change in the provisions governing the ultimate disposition of the property. Under these circumstances we do not agree with the petitioners' contention that the decedent had no further control over the property of this trust after the execution of the instrument dated February 5, 1931.
In the case of the trust for the decedent's mother, 1936 BTA LEXIS 763">*789 the original trust indenture provided that the trustee should pay the net income therefrom to his mother for life and at her death should pay the corpus to the decedent. On May 4, 1931, the decedent and his mother signed a written instrument which revoked the uses and trusts contained in the original trust indenture and directed that the fund so assigned should be held by the trustee in trust, to pay the net income therefrom to his mother for life and at her death to divide the corpus into three separate shares and to add one of such shares to each of the trusts created by the decedent for the benefit of his three children under the three trust deeds dated August 21, 1930. No other alteration or change was made by the decedent, it having been expressly recited in the instrument dated May 4, 1931, that it was the intention of the settlor "to revoke the uses and trusts in said indenture set forth and to make new uses as hereinafter recited, the terms and conditions of said indenture to otherwise remain unchanged."
34 B.T.A. 11">*22 We are of the opinion that the value of the property covered by this trust is likewise includable in the decedent's gross estate. What we have said above with1936 BTA LEXIS 763">*790 respect to the trust created by the decedent for his wife is applicable also to the trust created for his mother. In each instance the decedent reserved to himself an interest in the trust created by the original deed and by amendment he gave up the for the benefit of his wife the decedent was to receive the income for for the benfit of his wife the decedent was to receive the income for life, and he modified the trust by revoking his life interest; under the terms of the trust created for the benefit of his mother the corpus of the trust was to revert to the decedent or to his estate after his mother's death, and he substituted for this provision a paragraph providing that the corpus should be divided and the shares added equally to the trusts which he had established for the benefit of his three children. Inasmuch as all other terms and conditions of the original trusts were to remain unchanged, and the right to alter, amend, or revoke, with the concurrence of the beneficiary, was one of the other terms and conditions, we hold that the decedent did not relinquish his right to exercise control over the property thereby transferred and effectually to direct its devolution. The decedent1936 BTA LEXIS 763">*791 having retained the power to revoke or change the trusts, in conjunction with the beneficiaries, which power was not exhausted when the trusts were altered under the circumstances hereinabove set out, the enjoyment of the property was, at the date of the decedent's death, subject to a change through the exercise of such power, within the meaning of section 302(d).
In the view which we have taken it is unnecessary for us to consider the respondent's alternative argument that the decedent's modification of the trusts in favor of his wife and his mother, by the instruments dated February 5, 1931, and May 4, 1931, amounted to a relinquishment in contemplation of death of the powers reserved to him under the original deeds of trust; for this reason we have not incorporated in our findings of fact, and we shall not discuss herein, any of the evidence introduced by the parties with respect to the decedent's physical and mental condition on the significant dates, or the circumstances connected with his last illness, which evidence is claimed to throw light on the motives actuating the decedent in making disposition of the property covered by the trusts.
The petitioners claim as an allowable1936 BTA LEXIS 763">*792 deduction, under section 303(a)(1), the sum of $15,000 as additional counsel fees incurred in administration of the decedent's estate; $5,000 has already been claimed and allowed. The parties stipulated that the petitioners have agreed to pay and will pay their counsel as additional fees at least the $15,000 claimed, and that the total amount of $20,000 34 B.T.A. 11">*23 is comparable to the fees ordinarily paid in estates of this size and will therefore be allowed by the Orphans' Court. In these circumstances we hold that the $15,000 claimed as a deduction in respect of additional attorneys' fees should be allowed. ; ; .
This brings us to the three deductions, in the total amount of $23,500, claimed in respect of pledges made by decedent during his life to certain educational and charitable institutions. The several donees are public educational or charitable institutions, not run for private gain, within the meaning of the statute. The petitioners claim1936 BTA LEXIS 763">*793 them under section 303(a)(1) or (a)(3), Revenue Act of 1926, set out in the margin. 2 Although they were originally allowed by the respondent, he avers in his amended answer that they should be disallowed on the ground that none of the pledges was made for a full and adequate consideration in money or money's worth.
1936 BTA LEXIS 763">*794 With respect to the gifts to the Benjamin Franklin Memorial, Inc., and the Welfare Federation of Philadelphia, the decedent expressly promised to pay the specified amounts in consideration of the subscription of others. The facts bring these pledges squarely within the ruling of this Board in , and , in each of which decisions certain claims of charitable and educational institutions against the decedent's estate based upon monetary pledges of others were held to be for an adequate and full consideration in money or money's worth, within the meaning of section 303(a)(1). We therefore hold that the deductions claimed by the petitioners on account of these two items are proper and should be allowed by the respondent in computing the net estate subject to tax.
34 B.T.A. 11">*24 We are of the opinion that the same rule is applicable to the underwriting agreement executed by the decedent, whereby he agreed with the other underwriters and with the Pennsylvania Museum of Art to insure the sum of $25,000 toward a fund to be used by the museum for the purchase of certain1936 BTA LEXIS 763">*795 works of art, in accordance with the terms and conditions therein set out. This underwriting agreement is quoted in full in our findings of fact and the parties have stipulated the facts relating to the collection of the fund. The decedent's subscription was in consideration of like subscriptions by others; it amounted in effect to a gift to the museum which, although indefinite in amount when subscribed, will have to be paid in full by the petitioners. Under these circumstances we hold that the claim for the balance of $17,500, which had not been paid prior to the decedent's death, is based on the money promises of others, within the rule of
As to petitioners' claim in respect of a credit against the Federal estate tax for state inheritance and estate taxes paid, nothing appears of record beyond petitioners' claim for such a credit in their petition and their counsel's enumeration of the same claim in stating the issues in their brief. No argument or facts were adduced in support of the claim. Respondent recognized the sum of $101,906.03 as an allowable credit in respect1936 BTA LEXIS 763">*796 of this claim in his deficiency notice. While the facts stipulated show that petitioners claimed the sum of $112,124.96, we have no evidence that this sum was actually paid. We must conclude, therefore, that petitioners have abandoned this claim in excess of the amount of $101,903.06 already allowed.
Reviewed by the Board.
1. SEC. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated -
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(d) 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. * * * ↩
2. SEC. 303. For the purpose of the tax the value of the net estate shall be determined -
(a) In the case of a resident, by deducting from the value of the gross estate -
(1) Such amounts for funeral expenses, administration expenses, claims against the estate, unpaid mortgages upon, or any indebtedness in respect to, property * * * to the extent that such claims, mortgages, or indebtedness were incurred or contracted bona fide, and for an adequate and full consideration in money or money's worth, * * *
* * *
(3) The amount of all bequests, legacies, devises, or transfers, to or for the use of the United States, any State, territory, any political subdivision thereof, or the District of Columbia, for exclusively public purposes, or to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, or to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used by such trustee or trustees, or by such fraternal society, order, or association, exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals. The amount of the deduction under this paragraph for any transfer shall not exceed the value of the transferred property required to be included in the gross estate; * * *. ↩