McGrew v. Commissioner

*624 Petitioner challenges the determination of a deficiency of $14,984.22 in the estate tax of Benjamin Franklin McGrew, deceased. The deficiency resulted from approximately 50 adjustments made by respondent to items making*839 up the gross estate and deductions therefrom as reported on the estate tax return. While acquiescing in some of these changes petitioner raised 26 assignments of error in the petition, of which all but 5, raising 4 issues, have now been stipulated by the parties. The issues remaining for decision are:

(1) Whether the conveyance of two tracts of land by decedent to his wife within two years prior to his death was a transfer in contemplation of death;

(2) Whether funds in a joint savings account of decedent and his wife are taxable as part of the estate or, on the other hand, belonged to the wife and had not been acquired by her from decedent for less than an adequate and full consideration within the purview of the Revenue Act of 1926, section 302(e);

(3) Whether respondent erred in ascribing a value to certain bonds owned by decedent at the time of his death; and

(4) Whether the proceeds of insurance policies on decedent's life, payable to his estate, are exempt by virtue of the laws of Tennessee from inclusion in the gross estate.

FINDINGS OF FACT.

The stipulated facts are hereby found. Facts appearing hereinafter which are not stipulated have been otherwise found*840 from the record.

Decedent, Benjamin Franklin McGrew, died testate on March 16, 1937. His last will and testament was executed on May 16, 1935, by which he devised and bequeathed his entire estate, after payment of debts, to a trustee, the net income therefrom to be paid to his widow during her lifetime and with power in her to dispose of the estate by will. The trustee was authorized in its discretion and with the approval of the widow to encroach upon the corpus of the estate for her benefit.

Decedent's wife had been married prior to her marriage to decedent and had been left real estate and other property by her first husband, including a 70-acre farm located in Giles County, Tennessee, upon which she and decedent resided after their marriage. From the time of their marriage decedent managed the farm, paid the taxes on it, and took the proceeds. He was the owner of two tracts of land consisting of 52 and 94 acres, respectively, which adjoined his wife's farm, and which he often said he intended to deed to her.

In or about the year 1935 a number of lawsuits were filed against *625 decedent. Apprehensive that he would lose the greater part of his property, and*841 desiring his wife to own the two tracts adjoining her farm, decedent conveyed them to her under date of April 30, 1935. The deed was kept by her in a safety deposit box and was not recorded until September 20, 1938. At the time of the conveyance decedent was in fairly good health, although he had never been a strong man. He was not then suffering from the illness which caused his death. He was worried, however, over the suits pending against him. The conveyance by decedent to his wife was without consideration. The value of one of the tracts at decedent's death was determined by respondent and is conceded by petitioner to have been $7,200; and the figure reported on the return, which was accepted by respondent, correctly states the value of the other parcel. The conveyance was made in contemplation of death.

A judgment in one of the lawsuits was rendered against decedent in the approximate amount of $83,000. Decedent was ill at the time of the judgment and was unable to attend to procuring the funds with which to make payment. His wife, however, raised sufficient cash to pay the judgment by selling securities and other property which she and decedent owned. Of the cash*842 used to pay the judgment approximately $25,000 was procured from the sale of the wife's individual property. Decedent subsequently gave her some bonds as reimbursement for her contribution toward payment of the judgment.

After the first judgment was rendered decedent compromised another suit against him by the payment of $37,500. To raise this sum the wife sold for approximately $20,000 the bonds she had received from decedent. She also sold other property, some of which belonged to decedent, and in addition she borrowed some money. The proceeds were placed in her checking account. On October 1, 1935, she withdrew $36,881.96, the entire amount on deposit, which amount was deposited on the same day in decedent's checking account; and decedent's check for $37,500 in payment of the compromise was paid by the bank on October 2, 1935.

Decedent opened a savings account on May 11, 1936, with a deposit of $4,000. The credit balance in the account was increased to $23,000 by December 2, 1936. This amount was withdrawn on January 7, 1937. A deposit of $21,000 was made on January 20, 1937, and a subsequent withdrawal resulted in a credit balance in the account on March 6, 1937, of*843 $19,350. On that date the account was closed and the sum of $19,350 was given by decedent to his wife without consideration, for the purpose of reimbursing her for the bonds sold to assist in paying the compromise. On the same day, March 6, 1937, the wife opened a joint savings account in her own name and that of *626 decedent with a deposit of the $19,350, which remained the amount on deposit in the joint account ten days later when decedent died.

At the time of his death decedent owned 6 percent bonds of the International Sugar Feed Co., having a face value of $9,850. At that time or shortly thereafter the company was involved in a reorganization proceeding under section 77-B of the Bankruptcy Act. As a result of the reorganization decedent's executor received common stock of the company in exchange for the bonds. At the time of the hearing in the present proceeding the company was still a going concern. Before exchanging the bonds for stock the executor made an investigation to determine the value of the bonds and it determined that they had no value. It made an effort to dispose of them through brokers and after the exchange attempted to sell the stock, but was*844 unable to interest anyone in them. The stock is still held by the executor. Respondent valued the bonds at the date of decedent's death at 25 cents on the dollar, or a total of $2,462.50, and included this amount in the gross estate. The value of the bonds for estate tax purposes is $2,462.50.

Decedent carried four policies of insurance on his life which were payable to his estate. The proceeds of the policies, aggregating $8,526.47, were collected by the executor and immediately paid to decedent's widow. This sum was not included on the return as part of the gross estate, but respondent has added it thereto "in accordance with section 302(g) of the Revenue Act of 1926." No reference was made to the insurance in decedent's will.

The total value of the gross estate as determined by respondent in the notice of deficiency was $255,120.92.

OPINION.

OPPER: First issue. - The burden being upon petitioner to overcome the prima facie correctness of respondent's determination that decedent transferred property in contemplation of his death, as well as under the presumption created by section 302(c), the Board should have been placed in a position to determine by means of*845 a sufficiently complete description of all relevant facts what was decedent's impelling motive in making the two transfers. Petitioner fell far short of doing this. We do not know the cause of decedent's death, see Luscomb v. Commissioner (C.C.A., 2d Cir.), 30 Fed.(2d) 818; his age, see Updike v. Commissioner (C.C.A., 8th Cir.), 88 Fed.(2d) 807, 811; certiorari denied, 301 U.S. 708; or his state of mind when the transfers were made, see Travelers Bank & Trust Co., Executor,29 B.T.A. 88, 95. Even his physical condition at that time is described only as "fairly good" but "he was worried to death over this *627 lawsuit" and "he never was a strong man." The testimony shows that he was ill within six months of the time of the conveyance but not the nature of this illness.

The single circumstance relied upon to induce us to determine that these transfers were not made in contemplation of death is that decedent had previously intended to transfer the property to his wife and that at the time he feared his creditors might take it. But even this, in the form in which the evidence appears, is about as consistent*846 with the one motive as with the other. The wife testified that "he felt that I needed more land and that the bigger part of his property should have been wiped out, if that happened, that I would have a living, and he wanted me to have it." See Igleheart v. Commissioner (C.C.A., 5th Cir.), 77 Fed.(2d) 704.

On the other hand, decedent made his will within about two weeks of the transfer. See Rengstorff v. McLaughlin (Dist. Ct., N. Dist. Calif.), 21 Fed.(2d) 177. His wife was his beneficiary under both. See Myers v. United States (Ct. Cls.), 2 Fed.Supp. 1000, 1012; certiorari denied, 292 U.S. 629. The deed by which the gift was made was kept in his wife's safe deposit box and not recorded until after decedent's death.

The record, taken as a whole, leaves us far from satisfied that the gift was not brought about by testamentary motives. We have accordingly made the finding that the property was transferred in contemplation of death.

Second issue. - Although there may have been a reason for decedent to give his wife the money with which she opened their joint bank account, that is not enough to*847 eliminate the item from decedent's estate. There must have been "consideration", adequate in money or money's worth. The fact that the wife had supplied the husband with funds with which to satisfy his creditors does not constitute consideration unless the advances were a loan, accompanied by the promise that they would be repaid. Absent the evidence of any such promise in express terms, we must be able to find that one was implied. Fox v. Rothensies (C.C.A., 3d Cir.), 115 Fed.(2d) 42. "Expenditures out of the wife's separate estate made by the husband with her knowledge and consent will not render him liable to account for the same", 21 Cyc. 1431, quoted with approval in Williams v. Williams (Tenn.), 236 S.W. 926, 930, if the local law on the subject is controlling. But see Commissioner v. Greene (C.C.A., 9th Cir.), 119 Fed.(2d) 383; certiorari denied, 314 U.S. 641. The relationship of the parties and their attitude and intent respecting the transactions as inferable from their conduct are the controlling factors in ascertaining the existence of any implied promise. *848 See Williams v. Williams, supra.*628 No implication that the transaction was a loan necessarily arises merely from the use of the wife's principal or capital, Fox v. Rothensies, supra, nor from the husband's use of the funds for his own personal purposes instead of their joint benefit. Williams v. Williams, supra.Difficult and obscure questions lurk in the subject but these need not detain us here, for the wife's consent and approval and her attitude toward the financial transactions she had with her husband appear too unmistakably from her own testimony to leave room for any contrary implication. She testified, when explaining the purpose of the joint bank account, "We always lived that way, what I had was his, and what he had was mine, if we needed it * * *." There is no evidence that the wife was promised or expected repayment at time the creditors were paid, and we are unable to find anything in the record justifying the conclusion that decedent's funds, with which this joint account was opened, were given to the wife to liquidate any such promise or for anything else approaching an adequate and full consideration*849 in money or money's worth. On this issue respondent is sustained.

Third issue. - The only evidence relating to the value on the date of decedent's death of certain bonds forming a part of his estate was the inability of the executor to find a purchaser for them or for the stock later received in exchange. The debtor, after a 77-B receivership and reorganization, was still in active business. There is no predicate for any finding that the value of the securities was lower than that fixed by respondent. Petitioner's unsupported determination to that effect does not suffice. Higginbotham-Bailey-Logan Co.,8 B.T.A. 566, 578. Respondent's action on this issue must accordingly be approved.

Fourth issue. - It is claimed that insurance on decedent's life, payable to the estate, was in reality transformed by the unusual provision of Tennessee law, ¹ into policies for the benefit of decedent's wife, and therefore, as payable to "other beneficiaries", exempt within $40,000 from treatment as part of the estate. Sec. 302(g). This case is not like *850 Estate of Frederick G. Proutt,41 B.T.A. 1299, for there was no testamentary disposition of the insurance here, and its proceeds went directly to the wife through the executor without the intervention of any trust or other process of administration. It would be entirely comparable with Commissioner v. Jones (C.C.A., 6th Cir.), 62 Fed.(2d) 496, were it not for respondent's contention that the 1926 amendment to section 302(a) presents a new problem, a question which the Board expressly reserved in the Proutt case.

While there was no authority on the point when this proceeding was presented and briefed, the recent decision of the Sixth Circuit Court of Appeals in Proutt v. Commissioner, 125 Fed.(2d) 157, reversing Estate of Frederick G. Proutt, supra, necessarily and directly passes *629 upon the question and determines it in favor of petitioner. On the authority of that case, therefore, respondent's determination on this issue is disapproved.

Other questions were eliminated by stipulations of counsel at the hearing. These matters should be taken into*851 account in the recomputation.

Decision will be entered under Rule 50.