DocketNumber: Docket No. 1517-91
Citation Numbers: 64 T.C.M. 937, 1992 Tax Ct. Memo LEXIS 597, 1992 T.C. Memo. 579
Judges: WRIGHT
Filed Date: 9/28/1992
Status: Non-Precedential
Modified Date: 11/20/2020
*597 Decision will be entered under Rule 155.
MEMORANDUM OPINION
WRIGHT,
(1) Whether the surviving spouse's interest in a trust constitutes qualified terminable interest property under
(2) Whether, pursuant to
The parties submitted this case fully stipulated pursuant to Rule 122. The stipulation of facts and attached exhibits are incorporated herein. *598 John D. Spencer (decedent) died on March 6, 1987. Decedent was survived by his wife, Ernestine W. Spencer (Mrs. Spencer). At the time the petition was filed in this case, Mrs. Spencer resided in Newark, Ohio.
On September 24, 1984, decedent executed, as grantor, the John D. Spencer Trust Agreement (Spencer Trust), a revocable inter vivos trust, and Mrs. Spencer executed the same agreement as trustee. The Spencer Trust became irrevocable upon the death of John D. Spencer.
Decedent executed a last will and testament (the will) on September 24, 1984. In the will, decedent named Mrs. Spencer as executor. In the event Mrs. Spencer was unable or unwilling to serve as executor, decedent appointed his two daughters as alternate coexecutors. The will contained a specific bequest of certain property to Mrs. Spencer. Item V of the will provided that the residue of decedent's estate would be used to fund the Spencer Trust.
On June 10, 1986, decedent as grantor and Mrs. Spencer as trustee amended the Spencer Trust. The Spencer Trust, as amended, provided decedent's executor with the discretionary authority to qualify all or any part of the trust for the Federal estate tax marital deduction*599 by electing to treat such property as a qualified terminable interest property under
The Spencer Trust provided that in the event that the executor of decedent's estate elected to treat all or any part of the Spencer Trust property as a qualified terminable interest property, that portion of the trust property would be known and administered as John D. Spencer Trust A (Trust A). All of the income from Trust A was to be payable to Mrs. Spencer at quarterly or more frequent intervals.
The Spencer Trust further provided that the portion of the Spencer Trust which the executor did not elect to treat as a qualified terminable interest property would be known and administered as John D. Spencer Trust B (Trust B). The Spencer Trust provided that Trust B would be administered for the benefit of the grantor's spouse, the grantor's children, and the children of any deceased child of the grantor. Section 5(b) of the Spencer Trust stated, in part, that:
(b) The balance of the trust (hereinafter referred to as "Trust B") shall be administered as follows:
(i) The Trustee shall accumulate all income earned by the trust.
(ii) The Trustee may distribute to any one or more*600 of the Grantor's spouse, the Grantor's children, and the children of any deceased child of the Grantor such portion or portions of the accumulated income or principal of the trust as the Trustee from time to time deems appropriate in order to support and maintain the distributee in the manner to which he shall have become accustomed, to care for the health of the distributee, or to provide the distributee with an education, including a vocational, college or post-graduate education.
In determining whether to exercise the power conferred by this subsection in favor of any particular prospective distributee, the Trustee shall act as would a fond and judicious spouse, parent and grandparent possessed of similar resources, and shall take into account the other resources which may be available to both that prospective distributee and all other prospective distributees, including the resources of anyone who is legally obligated to support any prospective distributee and the resources of the spouse of any prospective distributee. In exercising such power, the Trustee shall not be required to maintain equality among prospective distributees.
Mrs. Spencer has been the only trustee for Trusts*601 A and B. John D. Spencer died on March 6, 1987. At the time of decedent's death, Mrs. Spencer was decedent's surviving spouse. Decedent's will was admitted to probate in the Probate Court of Licking County, Ohio, on March 13, 1987. On the same date, Mrs. Spencer was appointed as executor of decedent's estate, and has served as the sole executor of the estate from that date forward. The value of decedent's gross estate for Federal estate tax purposes totaled $ 1,875,297.14.
On December 3, 1987, Mrs. Spencer, as executor of decedent's estate, elected to convey various stocks, bonds, notes, mortgages, partnership interests, and cash to Mrs. Spencer, as trustee of Trust A. The parties have stipulated that the value of the property transferred to Trust A is $1,175,953.16 for Federal estate tax purposes. This value represented 70.4593 percent of the residuary estate. This $ 1,175,953.16 amount was listed on Schedule M of decedent's estate tax return (Form 706) as qualified terminable interest property transferred to Trust A. Respondent's notice of deficiency disallowed the $ 1,175,953.16 estate tax marital deduction attributable to the property transferred from decedent's estate*602 to Trust A. The executor's transfer of the estate assets to Mrs. Spencer as trustee of Trust A was without consideration.
On December 3, 1987, the balance of the residuary estate, 29.5407 percent, was conveyed to Mrs. Spencer as trustee of Trust B. The executor's transfer of assets to Mrs. Spencer as trustee of Trust B was without consideration.
All of the property transferred from decedent's estate to Trusts A and B was property owned by decedent, or derived from such property. All of the property transferred from decedent's estate to Trusts A and B was included in decedent's gross estate for Federal estate tax purposes. Following the transfer of assets from decedent's estate to Trusts A and B, the value of the estate assets was zero.
On December 5, 1987, Mrs. Spencer, as executor of decedent's estate, filed Form 706 and elected to treat the assets of Trust A as a qualified terminable interest property under
On November 8, 1990, respondent mailed a notice of transferee liability to "Ernestine W. Spencer, Transferee and Trustee, John D. Spencer Trust A", relating to the liability assessed against the transferee of the estate assets. On the same date, respondent mailed a notice of transferee liability to Mrs. Spencer as trustee of the Trust B assets.
The parties herein agree that funeral and administrative expenses for which the estate is entitled to a deduction for Federal estate tax purposes, excluding attorney's fees from the date of the notice of deficiency, total $ 38,182.24. In the event that respondent's disallowance of the estate tax marital deduction is sustained, the parties have agreed that a deduction will be allowed to the estate for the administrative expense of attorney's fees from the date the notice of deficiency was issued in the instant case.
The Economic Recovery Tax Act of 1981 (ERTA), Pub. L. 97-34, sec. 403(d), 95 Stat. 172, 302, added*605
a decedent would be forced to choose between surrendering control of the entire estate to avoid imposition of estate tax at his death or reducing his tax benefits at his death to insure inheritance by the children. The committee believes that the tax laws should be neutral and that tax consequences should not control an individual's disposition of property. * * * [H. Rept. 97-201 (1981),
(B) * * * For purposes of this paragraph --
(i) In general. -- The term "qualified terminable interest property" means property --
(I) which passes from the decedent,
(II) *606 in which the surviving spouse has a qualifying income interest for life, and
(III) to which an election under this paragraph applies.
(II) Qualifying income interest for life. -- The surviving spouse has a qualifying income interest for life if --
(I) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, * * * and
(II) no person has a power to appoint any part of the property to any person other than the surviving spouse.
* * *
(v) Election. -- An election under this paragraph with respect to any property shall be made by the executor on the return of tax imposed by
Generally, an interest "passes from the decedent", within the meaning of
The intent of
If a surviving spouse has a "qualifying income interest for life" within the meaning of
Whether an interest in property qualifies for the marital deduction must be determined as of the date of decedent's death.
Respondent's position is that, as of the date of decedent's death, Mrs. Spencer's interest in Trust A did not constitute "qualified terminable interest property" under
Petitioner argues that the estate tax marital deduction provisions are to be liberally construed to accomplish their objective and that Mrs. Spencer's interest in Trust A satisfies the definition of "qualified terminable interest property" in
We first address respondent's argument that Mrs. Spencer's interest in Trust A is not a "qualifying income interest for life". A "qualifying income interest for life" exists where: (1) The surviving spouse is entitled to all of the income from the property for life, payable annually or more frequently, and (2) no one has the power to appoint any part of the property subject to the qualifying income interest to any person other than the surviving spouse.
With respect to the second requirement, the surviving spouse's interest in a qualified terminable interest property trust cannot be subject to a power to appoint the property to any person other than the surviving*610 spouse. That is, no person (including the surviving spouse) may have the power to appoint any part of the property subject to the qualifying income interest to any person other than the spouse during the spouse's life. See H. Rept. 97-201 (1981),
In the instant case, the executor could make an election under
The executor's ability to control and to direct the assets to either Trust A or Trust B created the possibility, as of the date of decedent's death, that none of the assets in the residue of decedent's estate would be used to fund Trust A. Rather, if the qualified terminable interest property election were not exercised, the entire property interest would pass to Trust B for the benefit of persons in addition to the surviving spouse. The executor's discretionary power to direct the estate assets to Trust B constitutes an impermissible power of appointment in violation of
By the same token, because of the executor's power to control and to direct the estate assets, the possibility existed that Mrs. Spencer would not be "entitled to all the income from the property" within the meaning of
We agree with respondent that
In
Accordingly, we conclude that Mrs. Spencer's interest in Trust A is not a "qualifying income interest for life". Therefore, her interest in Trust A is a nonqualified terminable interest, and decedent's estate is not entitled to an estate tax marital deduction for Mrs. Spencer's interest in the Trust A property with respect to which an election was made. Since we have concluded that the Trust A property is ineligible for a qualified terminable interest property treatment under
Respondent at last contends that Trust A and Trust B, with Mrs. Spencer as trustee, are liable as transferees for the estate tax deficiency of decedent's estate pursuant to
*615
1. The parties have stipulated that both Trust A and B received a distribution of property from decedent's estate. Therefore, Trust A and B are transferees for purposes of
elaine-yagoda-formerly-elaine-drechsler-v-commissioner-of-internal , 331 F.2d 485 ( 1964 )
United States v. Herbert R. Edmondson, as of H. L. ... , 331 F.2d 676 ( 1964 )
Estate of John T. Higgins, Deceased Manufacturers National ... , 897 F.2d 856 ( 1990 )
Commissioner v. Stern , 78 S. Ct. 1047 ( 1958 )