Williamson v. Commissioner

*1038OPINION.

The issue in this appeal is whether or not the estate of Emma D. Freeman is liable to income taxation on its net income for the year 1921.

The position of the petitioners with respect to the question before us is that the total amount of legacies, both immediate and future, as provided in the will of Emma D. Freeman, was less than the *1039amount of corpus at the date of her death, and that, under the provisions of her will, all of the residue of her estate, both corpus and income, was payable in equal portions to the Cleveland chapter of the American Red Cross and the Welfare Federation of Cleveland, a trust having been created under which payment was to be made to the residuary legatees ten years from date of probate of the will, which was on January 5, 1920.

The petitioners contend (1) that since the amounts payable out of the corpus of the estate necessary to pay the specific legacies and the annuities (based upon recognized expectancy tables), and to establish the two trust funds of $50,000 and $100,000 are, in the aggregate, less than the amount of corpus at the date of death, all the income of the estate becomes part of the residuum payable ten years from the date of probating the will to two charitable organizations as residuary legatees; (2) that each of the residuary legatees is an organization exempt from income taxation; and (3) that, therefore, the income of the estate for the year 1921 was not subject to income tax.

The respondent admits that the American Red Cross is an organization exempt from income taxation and that the Welfare Federation of Cleveland is a corporation apparently engaged in social welfare work, but denies in his answer that the latter organization is exempt from income taxation. He contends that the income of the estate was not “ paid or permanently set aside ” within the meaning of section 219 (b) of the Revenue Act of 1921, and that such income is taxable to the estate as to a single individual.

The trust created under item 32 of the will is not a corporation or a community chest, fund or foundation. Neither is it an association. It is an ordinary trust and as such trust does not fall within the following provisions of section 231 of the Revenue Act of 1921:

Seo. 231. That the following organizations shall be exempt from taxation nncler this title—

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(6) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for 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.

Consequently, if the income of the estate is exempt from taxation such exemption will be pursuant to the provisions of section 219 of the Revenue Act of 1921, which are, in part, as follows:

Seo. 219. (a) That the tax imposed by sections 210 and 211 shall apply to the income of estates or of any kind of property held in trust, including—

(1) Income received by estates of deceased persons during the period of administration or settlement of the estate;

*1040(2) Income accumulated in trust for the benefit of unborn or unascertained persons or persons with contingent interests;

(3) Income held for future distribution under the terms of the will or trust; and

(4) Income which is to be distributed to the beneficiaries periodically, whether or not at regular intervals, and the income collected by a guardian of an infant to be held or distributed as the court may direct.

(b) The fiduciary shall be responsible for making the return of income for the estate or trust for which he acts. The net income of the estate or trust shall be computed in the same manner and on the same basis as provided in section 212, except that (in lieu of the deduction authorized by paragraph (11) of subdivision (a) of section 214) there shall also be allowed as a deduction, without limitation, any part of the gross income which, pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for the purposes and in the manner specified in paragraph (11) of subdivision (a) of section 214. * * *

The pertinent provisions of section 214 of the Revenue Act of 1921 are;

Sec. 214. (a) That in computing net income there shall be allowed as deductions :

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(11) Contributions or gifts made within' the taxable year to or for the use of: * * * any corporation, or community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private stockholder or individual; * * *

The Welfare Federation of Cleveland was incorporated, not for profit, under the laws of Ohio on January 13, 1917. It is a central planning body composed of over 100 charitable and social welfare agencies of the City of Cleveland, the majority of which receive support through it from the Cleveland Community Fund. It has no stockholders, the corporate body being the general board, which is composed of two representatives from each member agency. The powers, business and property of the Federation are exercised, conducted and controlled by the board of trustees, the members of which are elected by the general board. Its activities comprise the planning and correlating of the work done by the various member agencies and the budgeting of the income of the agencies and the annual appropriations made to them by the Cleveland Community Fund. Certain services which are common to all agencies such as publicity, accounting and bookkeeping, mimeographing, housing, etc., are centralized in the Welfare Federation.

It is authorized by its charter to receive and hold funds or real property, in trust or otherwise, whether given by will, gift, or otherwise, and to distribute the same among such organizations as may be deemed best, or to make such other use thereof or engage in such other activities as may be deemed in the general interest of charity *1041and education in Cleveland and its vicinity. The regulations of the Welfare Federation provide that only such organizations shall be considered eligible to financially participating membership as are justified in making an appeal for funds to the general public and not merely to a restricted constituency of support limited to religious, denominational or other special affiliations. No organization is admitted to membership unless it can demonstrate that it fills a need not already well filled or capable of being thus filled by an existing agency. Propaganda organizations in the field of controversial questions and organizations which recommend in favor of or against the election of individual candidates to political office are not admitted to membership.

In our opinion the Welfare Federation of Cleveland is exempt from taxation under the above quoted provisions of section 231 of the Revenue Act of 1921.

The only remaining question involved is whether the income received by the estate was paid or permanently set aside for charitable purposes within the meaning of the Act. Counsel for the respond-, ent argued that no part of the income of the estate was paid or credited to the residuary legateesthat the date of payment of the residuum is uncertain and in the future; that the corpus and accumulations may be depleted to such an extent that there is nothing left to distribute or to pay over to the exempt corporations; and that the income could not be appropriated and dedicated finally and for all time to charitable uses, as specified in section 214 (a) (11), so that thereafter there will be no change which would destroy the character of such action because such action could not be taken for a number of years and because contingencies resulting from other items of the will might divert the accumulated income and the corpus from the residuary legatees.

Counsel for the petitioners argued that since the corpus of the estate at the time of the death of the testatrix was greatly in excess of the aggregate amount of legacies provided for in the will, the entire income of the estate passed to the residuum and as such became payable to the two designated charities ten years after th'e will was probated. In support of his argument he shows that the will provided for the payment of specific legacies, annuities, and the establishment of two trust funds aggregating $480,956, leaving a residuum of $272,806.41, based on a valuation of the corpus of the estate as of date of death of $753,762.47, said valuation having been used both for probate court and Federal estate-tax purposes. Corroborative evidence was presented showing that the earnings of the estate for each year subsequent to the date of death were more than *1042sufficient to pay expenses of administration and that on Decembei 31, 1926, the book value of the corpus was $386,327.08, subject to the payment of legacies, annuities and the establishment of the $50,000 trust fund aggregating $174,337, leaving a book value of the remaining corpus alone amounting to $211,990.08. The book value of the residuum, including corpus and income, as at December 31, 1926, was $408,804.33 and the market value thereof as at January 20, 1927, was $519,653.76.

We are not convinced, however, that all of the income of the estate became part of the residuum in view of the provisions of items 34 and 36 of the will. Under those items, a trust with a principal of $100,000 was created immediately which was to exist for twenty-one years after the death of the testatrix. The income of said trust was to be divided equally between two nephews of the decedent and was to be distributed to them in quarterly installments, or at the discretion of the executors and trustees, who were also empowered to distribute from the principal of the trust such other sums as they might deem necessary or desirable. At the expiration of the twenty-one-year period, the then remaining principal was to be divided equally between the two nephews. Although it appears that this trust fund was set up separately on the books of account during or at the close of the year 1921, no evidence was presented to show that no part of the income claimed by the respondent to have been received by the estate in 1921 was received upon such trust fund. So far as appears the whole estate was considered an entity prior to the creation of the Fellows Trust Fund and the income of the estate, after the payment of expenses, was invested and added to the remaining corpus. ‘

It results, therefore, that the contention of the petitioners that all the income of the estate became part of the residuary estate and as such was ultimately payable to the Cleveland chapter of the American Eed Cross and the Welfare Federation of Cleveland can not be sustained. Even if it be conceded that that portion which did pass to the residuary estate would be deductible as having been paid or permanently set aside for the use of two exempt charitable corporations, we could not, from the evidence submitted, decide what portion, if any, could be deducted.

The facts in this case are essentially different from those which obtained in Appeal of Herbert Jermain Slocum, 6 B. T. A. 36; Bowers v. Slocum, 20 Fed. (2d) 350. There it appeared that it was the duty of the executors, pursuant to the terms of the will, to pay to the residuary legatees or permanently set aside for them the income upon the residuary fund. In the case at bar there is no *1043evidence that any part of the income of the estate during 1921 was paid to or permanently set aside for the residuary legatees.

Judgment will be entered for the respondent.