Fay v. Commissioner

*663 This proceeding*668 was instituted by Michael Fay and Nellie C. Blacker, executors, for the redetermination of a deficiency in income tax determined for the year 1930 against Robert Roe Blacker, deceased, in the amount of $1,304.50. The principal issue for determination is whether or not the income received during the taxable year from certain securities previously transferred by the decedent to the California Institute of Technology on the condition that the income therefrom be distributed to him, and after his death to his wife, constituted taxable income to the decedent. It is stipulated that if this issue should be determined against the petitioners, a recomputation of the deduction in respect of charitable contributions will be necessary.

FINDINGS OF FACT.

Robert Roe Blacker, hereinafter referred to as the decedent, died testate on September 16, 1931. Michael Fay and Nellie C. Blacker were duly qualified and appointed as executors of the decedent's estate. Fay died on January 14, 1935, and Nellie C. Blacker is now acting as sole executor.

On August 30, 1929, the decedent and his wife, Nellie C. Blacker, entered into a written agreement with the California Institute of Technology, a corporation*669 organized and existing under the laws of the State of California for educational purposes and not for profit, and hereinafter referred to as the Institute. Pertinent portions of the agreement are as follows:

THIS AGREEMENT AND INDENTURE, made this 30th day of August, 1929, by and between ROBERT ROE BLACKER, of the City of Pasadena, County of Los Angeles, State of California, party of the first part, hereinafter designated as the Donor, and CALIFORNIA INSTITUTE OF TECHNOLOGY, a corporation, organized and existing under the laws of the State of California, for educational purposes and not for profit, party of the second part, hereinafter designated as the Institute.

WITNESSETH

THAT WHEREAS, the said Donor desires to give and donate to the said Institute, and the said Institute desires to accept and receive from said Donor, all that certain personal property hereinafter in paragraph First hereof particularly specified and described for the purposes and subject to the agreements and conditions, and upon the trusts and confidences, hereinafter expressed, and for that purpose, the parties hereto desire to establish a trust, upon the conditions and for the uses and purposes hereinafter*670 set forth.

Now, THEREFORE, IT IS HEREBY MUTUALLY COVENANTED, AGREED AND DECLARED, as follows:

FIRST: That the said Donor, ROBERT ROE BLACKER, has by proper instruments of endorsement, assignment and transfer, executed and delivered simultaneously herewith, and with the delivery of the proper certificate and/or certificates evidencing the ownership of the hereinafter described stock, given, granted, transferred and set over, and he does hereby give, grant, transfer and set over to the said Institute, and the said Institute has accepted and received, and does *664 hereby accept and receive, subject to the agreements and conditions, and upon the trusts and confidences hereinabove referred to and hereinafter expressed, all of his right, title and interest in and to the following described personal property:

[Here follows a description of various corporate stocks with the number of shares of each.]

* * *

SECOND: That said Institute shall have and hold all of the trust property, that is to say, all of the hereinabove described personal property, and the proceeds thereof, and all investments and reinvestments thereof, unto the said Institute and its successors.

BUT*671 IN TRUST, NEVERTHELESS, for the uses and purposes and subject to and upon the agreements, conditions, trust and confidences, as follows, that is to say:

1. The said Institute shall receive, hold, sell, invest and reinvest, in the manner hereinafter specified, all of the said hereinabove described personal property and each and every part thereof and the proceeds thereof, and any securities in which said proceeds may from time to time be invested or reinvested, and shall collect, recover and receive the income thereof, and shall use and apply the same for the purposes hereinafter specified, and not otherwise.

2. After deducting any taxes or other governmental charges, which the Institute may be required or compelled to pay thereon, or deduct therefrom on behalf of the donor by any present or future law whatsoever, the said institute shall pay, apply and distribute all of the net income therefrom to the said Donor, so long as he shall live, and thereafter to his wife, NELLIE CANFIELD BLACKER, if she shall survive him so long as she shall live. The said income shall be paid to the said Donor and/or his wife in quarterly installments on the 15th days of January, April, July and*672 October in each year. It is expressly agreed that in determining the amount of the net income above referred to, the said Institute shall make no charge for its services, or the services of any of its officers or employees, in connection with the management of the trust hereby created. For the purposes of this trust it is understood that income shall comprise not only cash dividends, but also such stock dividends as may be received from the shares of the corporations mentioned in subdivision FIRST hereof, and it is the essence of this trust that said stock dividends shall be delivered to the trustor.

3. The Institute shall keep the balance or corpus of the trust estate, that is to say, all of the above mentioned personal property, including the proceeds thereof, and all investments and reinvestments thereof, invested or reinvested so as to earn such income as shall be compatible with the safety of investment; provided, however, that the Institute shall not sell the above described personal property, or any part thereof, except with the written consent of the said Donor so long as he shall live or the consent of his wife NELLIE CANFIELD BLACKER, if she shall survive him, so long*673 as she shall live. The Institute shall not be liable or responsible for any loss or depreciation incurred by reason of its retention of the hereinabove described personal property, or any part thereof, until authorized by the said Donor or his wife as hereinabove provided, to dispose of the same whether or not such personal property of any part thereof, be authorized by the present or any future law, or the rules of any court, of the State of California, as investments for trust funds.

4. From and after the death of the survivor of the said ROBERT ROE BLACKER and NELLIE CANFIELD BLACKER, all of the personal property then comprising the principal or corpus of the trust estate, and any part thereof, and any and all *665 proceeds, investments and reinvestments thereof, shall be held and retained by the said Institute, and shall be placed by the said Institute in a separate fund to be known as the ROBERT ROE BLACKER ENDOWMENT FUND, and the income only from the said fund shall be used for the payment of the salaries of foreign and other visiting professors and instructors and of professors and instructors engaged on specific research problems, for the stipends of scholars and*674 fellows at the Institute, and for the expense of research work. It is expressly agreed that no part of the said income shall be used for the purchase of land or the erection of buildings. The Institute shall keep the securities comprising the said fund, and any part thereof, and the proceeds thereof, invested and reinvested, and shall have full power to sell, exchange or otherwise dispose of the same, or any part thereof, or any securities in which the same and/or proceeds thereof may be invested or reinvested, and to invest and reinvest the same in stocks, bonds and/or real estate mortgages as in its discretion it may deem advisable.

5. The Donor shall, and he does hereby, assume the payment of all assessments, liabilities, obligations and indebtedness of the said Donor, which are now liens or charges upon the aforesaid trust property and/or any part thereof, and all liability, obligations and indebtedness of the said Donor at any time arising or springing out of the ownership by him of any of the personal property and/or the receipt or right to receive said income, including all state or federal income or other taxes and assessments that may be legally assessed or chargeable*675 against any interest of the Donor hereunder.

6. Said Institute shall, whenever required by the said Donor, during his life, or by the said Nellie Canfield Blacker, his wife, during her life, if she shall survive him, but not oftener than twice in each calendar year, render to the said Donor, or to the said Nellie Canfield Blacker, his wife, if she shall survive him, a statement in writing, verified by the affidavit of an officer of the said Institute, setting forth in detail the transactions and dealings, receipts and disbursements of said Institute with respect to the said personal property held by it under the trust hereby created.

* * *

This instrument of trust is signed by Mrs. Nellie C. Blacker, wife of Robert Roe Blacker, as evidence of her consent to the delivery of the said trust fund to the trustee upon the terms hereof; as further evidence of the fact that the said trust fund is the separate property and estate of Robert Roe Blacker, the said signature shall likewise constitute a waiver upon her part of all claim to the trust fund or any part thereof on the ground that the same is community property.

On or about August 30, 1929, the various stocks described in*676 the agreement were, in accordance with the terms thereof, transferred to the Institute. Immediately after the transfer of the stocks the certificates therefor were surrendered to the various corporations and new certificates were issued in the name of the Institute without any qualifying designation. Thereafter all dividends on all of the stocks were paid directly to the Institute.

During the calendar year 1930 pursuant to and in accordance with the agreement the Institute paid to the decedent the sum of $43,022.80. The sums paid to the decedent by the Institute under the terms of the agreement from August 30, 1929, to and including the *666 end of the calendar year 1930 were less than the cost to him of the securities he transferred to it.

The decedent duly made and filed his income tax return for the calendar year 1930 with the collector of internal revenue for the sixth district of California. In computing his net taxable income the decedent did not include the amount of $43,022.80 which he had received during 1930 from the Institute pursuant to the agreement. Upon examining the return the respondent determined that the amount was income to the decedent as beneficiary*677 of a trust and determined the deficiency in controversy.

OPINION.

TURNER: The petitioners contend that the agreement between the decedent and the Institute was an endowment or annuity contract, and, under the provisions of section 22(b)(2) of the Revenue Act of 1928, the amounts paid to the decedent during the taxable year were excluded from gross income. The respondent takes the position, on the other hand, that a trust was created by the decedent through the transfer of the securities to the Institute as trustee and that the income, being reserved in the grantor, is taxable to him.

The petitioners rely on , in which case the facts are very similar to the facts in the instant case. There the court reversed the Board and held that the various transfers of securities amounted to the purchase of an annuity or the creation of an endowment and that the grantor derived no income therefrom until the amount received equaled the value of the securities at the time of the transfer. While, as is pointed out by the respondent, the terms of the instrument in the instant case refer to the transfer of*678 securities as the transfer to a trust, and the instruments involved in , use language which does not of itself imply the creation of a trust, we see no substantial distinction between the two cases on the facts. In each instance the securities were transferred to the particular organization subject to a provision that the grantee should receive the income therefrom and pay it over to the grantor during his life and then to certain other individuals during their lives; and it was further provided in each case that after the death of the individuals so designated the income therefrom should be used in furthering the purposes of the institutions to which the securities had been transferred. It seems thus apparent that , supports the petitioners' contentions. We have carefully examined the decision and the reasoning of the court therein, but for reasons set forth below are unable to follow that decision in this proceeding. *667 A substantially similar transaction was before the United States Circuit Court of Appeals for the Eighth*679 Circuit in , and in our opinion the reasoning of the court in that case clearly and accurately construes the transaction which took place here. There a transfer of securities was made by a mother to her son. By the terms of the transfer instrument the son was to pay the income derived from these securities to the grantor and her husband during their lives. An effort was made to include the income from these securities in the income of the grantee under the same reasoning that was used by the court in The court held that the grantor had not purchased an annuity, saying, "In the instant case, at the time of the execution of this contract, Catherine Bettendorf was the absolute owner of these securities and, as an incident to such ownership, she was entitled to all the earnings or dividends derived therefrom. By her contract, however, she transferred the legal title to the stock, but by the terms of this same contract she retained and reserved to herself the right to the income during her life. The income was therefore at no time that of the petitioner, *680 because by the very contract under which he held the legal title he was bound to account to the donor for the income. The contract required that the petitioner account only for such income as accrued, and not for a specified sum. He was not chargeable personally with the income for the stock, except as and when it should be received by him, and hence the contract did not create an annuity in favor of Mrs. Bettendorf."

The reasoning of the court in , is equally applicable in this case. The grantor owned the securities transferred, and, as an incident of the ownership of those securities, was entitled to all the earnings or dividends derived therefrom. A transfer of the securities was made to the Institute for certain designated purposes, but the grantor never at any time parted with the right to receive the income. It is true that the securities were transferred to the name of the Institute and the income from them was to be collected by it, but by the terms of the contract all of this income, after the payment of certain charges incident to its collection, was to be paid over to the grantor during the period of his life. *681 After his death the income was to be used for certain purposes specified by the grantor in the agreement, but the grantor never at any time parted with the right to receive such income as might be derived from the securities during his lifetime. The income as such was reserved by the grantor and by the terms of the instrument the Institute was merely the conduit through which it passed.

In , the court, in support of its holding that the grantor had purchased an *668 annuity, cited ; ; and . The reasoning in those cases, however, was specifically rejected by the Supreme Court in . In that case the Supreme Court held that an election by a widow to accept income from the residue of her husband's estate as provided by will rather than to claim the rights granted her by the state laws was in no proper sense the purchase of an annuity. *682 Cf. ; ; and .

The action of the respondent in including in the income of the decedent the amounts received from the securities transferred to the Institute is sustained. From this holding, it follows that a recomputation of the deduction in respect of charitable contributions is necessary.

Decision will be entered under Rule 50.