Audigier v. Commissioner

OPINION.

Van Fossan, Judge:

Petitioner contends that the monthly payments received by her from the University of Tennessee during the years 1945, 1947, and 1948 were gifts from the university and therefore excludible from her gross income under section 22 (b) (3), Internal Revenue Code.¹

Respondent denies that the payments were gifts and further contends that even if they were gifts they were gifts of “income from property” within the purview of the second and third sentences of section 22 (b) (3) and hence not to be excluded from gross income.

It is settled law that a gift is a voluntary transfer from one person to another person without any consideration or compensation therefor. Noel v. Parrott, 15 F. 2d 669; C. B. Wilcox, 27 B. T. A. 580. Equally well settled, at least for income tax purposes, is the proposition that a transfer will not be deemed a gift unless it is accompanied by an intent on the part of the transferor to make a gift. Cooper v. Commissioner, 197 F. 2d 951; United States v. McCormick, 67 F. 2d 867; Weagant v. Bowers, 57 F. 2d 679; Beck-Brown Realty Co., 46 B. T. A. 1225; Shell Employees' Benefit Fund, 44 B. T. A. 452; Acme Land & Fur Co., 31 B. T. A. 582, affd. 84 F. 2d 441; Willis L. Garey, 16 B. T. A. 274. Thus petitioner has the burden of proving both essential elements, i. e., absence of consideration and presence of donative intent. We do not think that she has sustained that burden.

It is stipulated that the payments to petitioner were made by the university in accordance with the terms of the contract, or lease agreement, of January 16,1941. Under this contract, the university promised to pay petitioner for the rest of her life after the death of her husband one-half of the net rents from the business property leased for 99 years to Miller’s, Inc. There was consideration for this promise if, at the instance of the promisor, either the promisor received some benefit or the promisee incurred some detriment. The preamble to the contract states that “* * * the Lessors desire to lease said premises to the Lessee for a term of ninety-nine (99) years in order that The University of Tennessee may be assured of a definite income during said term for the purpose of promoting and maintaining a Fine Arts Department * * Thus, on its face, the contract reveals an intention to benefit the university. Not only was the university assured of a steady income after the death of L. B. Audigier but it also had the option of selling the premises to the lessee at any time after the death of petitioner. Under the latter provision, the university could elect either to continue to receive as rent $6,000 per year, an 8 per cent return, or to sell the premises for the agreed purchase price of $75,000, whenever it should have the opportunity of making a more profitable investment. It is reasonable to infer, we think, that this provision was inserted at the behest of the university and we do not feel that any of the other parties to the contract stood to benefit from it as much as the university. It is improbable that Miller’s, Inc., lessee, desired the inclusion of this provision which placed the lessee in the position of having to produce $75,000 within 2 months after the university, in its discretion, should elect to sell. To be sure, had the university not entered into the contract it would have had an unlimited right to dispose of the property upon the death of the life tenant, L. B. Audigier. But the fact remains that it became a party to the contract and received benefit thereby which we cannot find to be entirely unsolicited or unbargained for.

It will be noted that under the deed of September 15, 1982, L. B. Audigier retained a life interest in the property, together with the right to “* * * make lease or leases thereon for any term and upon any terms thought best by him * * This provision gave L. B. Audigier bargaining power vis-a-vis the university. He was under no obligation to execute the lease agreement. Furthermore, he could have negotiated, with or without the university’s joinder, a lease, the terms of which might well have proved burdensome to the university upon his death. L. B. Audigier’s action in signing the lease, which constituted detriment,² removed this possibility and, in our opinion, formed at least part of the inducement for the university’s promise. We, therefore, conclude that consideration for the university’s promise to make the specified payments to petitioner was not lacking.

If there was consideration, the university was bound. We would assume that petitioner, either as a party to the contract or as a donee beneficiary of the contract, could enforce the university’s promise to pay her one-half of the net rents for the rest of her life. Title Guaranty & Trust Co. v. Bushnell, 143 Tenn. 681, 228 S. W. 699; cf. United States v. Inorganics, Inc., (E. D., Tenn.) 109 F. Supp. 576. Where there is an enforceable obligation, there is no gift. Sutro v. United States, (N. D., Calif., 1942) 13 A. F. T. R. 1618, 42-2 USTC ¶952'3, Accordingly, the money received by petitioner was taxable as income to her. Cf. Flarsheim v. United States, 156 F. 2d 105.

Even were no consideration found for the university’s promise, petitioner still cannot prevail without showing a donative intent in the university. Weagant v. Bowers, supra. This she has not done. Petitioner apparently contends that the 1934 resolution of the board of trustees is evidence of such intent. But since the. resolution was passed in the form of an agreement and only after a request from petitioner’s husband, the gesture, while generous, did not possess the spontaneity which is associated with most gifts. Furthermore, there is no evidence that any donative intent existed as late as 1943, the year in which the university first began making payments to the petitioner. It would be unreasonable to suppose that the university, after becoming a party to the contract of January 16,1941, did not feel itself under a moral, if not a legal, obligation to pay over the agreed amounts to petitioner. A payor lacks the intent to make a gift if he is actuated chiefly by a sense of moral obligation. Cf. dissenting opinion in Bogardus v. Helvering, 88 F. 2d 646, 649, reversed sub nom. Bogardus v. Commissioner, 302 U. S. 34. Moreover, the fact that the university’s payments were made in pursuance of a formal business transaction tends to negative the existence of the requisite donative intent. Cf. Cooper v. Commissioner, supra; Mulqueen v. Commissioner, 65 F. 2d 365; Weagant v. Bowers, supra. Thus we are not persuaded that the payments here meet the test for a gift as set forth in Bass v. Hawley, 62 F. 2d 721, 723, as follows:

That only is a gift which is purely such, not intended as a return of value or made because of any intent to repay another what is his due, but bestowed only because of personal affection or regard or pity, or from general motives of philanthropy or charity.

Accordingly, we hold that the payments in question were taxable income and not gifts.

Having held that the payments here were not gifts, we do not find it necessary to discuss respondent’s argument that the payments, if gifts, were gifts of “income from property” under section 22 (b) (3).

Petitioner’s 1945 return was due March 15, 1946. Sec. 53 (a) (1), T. R. C. Petitioner filed her 1945 return August 7, 1950, and has offered no explanation for the delay. As a consequence she is liable for the addition to the tax as computed by respondent under section 291, Internal Revenue Code. We so hold.

The parties have stipulated that any adjustments to which the petitioner is entitled shall be determined under a Rule 50 computation.

Reviewed by the Court.

Decision will he entered under Rule 50.

1 SEC. 22. GROSS INCOME.

(b) Exclusions from Gross Incomb. — The following items shall not be Included In gross income and shall be exempt from taxation under this chapter:

****** *

(3) Gifts, bequests, devises, and inheeitances. — The value of property acquired by gift, bequest, devise, or inheritance. There shall not be excluded from gross Income under this paragraph, the income from such property, or, in case the gift, bequest, devise, or inheritance is of income from property, the amount of such income. For the purposes of this paragraph, if, under the terms of the gift, bequest, devise, or Inheritance, payment, crediting, or distribution thereof is to be made at intervals, to the extent that it is paid or credited or to be distributed out of income from property, It shall be considered a gift, bequest, devise, or inheritance of Income from property;

2 “Detriment, * * * as used In testing the sufficiency of consideration means legal detriment as distinguished from detriment in fact. It means giving up something which immediately prior thereto the promisee was privileged to keep or doing or refraining from something which then he was privileged not to do or refrain from doing.” 1 Williston on Contracts, sec, 102A.