Birkbeck v. Commissioner

*803 The Commissioner determined a deficiency in estate tax in the sum of $7,384. The sole issue before the Board is whether or not a transfer in trust by decedent in 1903 may be taxed under section 811(c) of the Internal Revenue Code as a transfer intended to take effect in possession or enjoyment at or after death.

Most of the facts were stipulated. Only those facts necessary for disposition of the issue before the Board will be set forth in the findings.

FINDINGS OF FACT.

Petitioner is the successor trustee of a trust created on May 20, 1903, by Mabel Shaw Birkbeck (then Mabel Shaw Myers), hereinafter referred to*645 as "decedent." Decedent died on May 30, 1939, and at the date of her death was a nonresident alien. No executor or administrator of decedent's estate has been appointed in the United States. The Federal estate tax return for decedent's estate was filed by petitioner with the collector of internal revenue for the second district of New York on September 22, 1939.

On or about May 20, 1903, decedent executed a trust instrument by which she agreed to transfer to the Colonial Trust Co. as trustee the sum of $75,000. The trust instrument provided that the trustee should hold the principal:

* * * IN TRUST, nevertheless, for and during the natural lives of the party of the first part and her daughter, Carola Shaw Myers, and the survivor of them, to invest the same and keep the same invested and to collect and receive the interest, revenue and income therefrom and after deducting the commissions and expenses below set forth, to pay the net amount thereof over as collected to the party of the first part during her life, and upon her death to pay over the same unto her said daughter so long as she shall live and upon the death of both of said parties to pay over and distribute the principal*646 of the fund, together with any accumulations which there may be unto the lawful issue of *804 the said daughter if any there shall be, and if there shall be none, then in accordance with the provisions of the Last Will and testament of the said party of the first part if she shall leave any and if there be none, then in accordance with the provisions of her said daughter's last will and testament, if any there shall be, and if there be none, then among the next of kin of the said party of the first part in accordance with the laws of the State of New York then governing distribution of the personal property of a person dying intestate.

On or about November 30, 1903, the trust agreement was amended to permit decedent to enlarge the corpus of the trust. The trust instrument did not reserve to decedent the power to alter, amend, or revoke the trust.

At the date of decedent's death Carola, the daughter of decedent mentioned in the trust agreement, and two children of Carola were living. The value of the corpus of the trust on May 30, 1939, was $83,526.41.

Decedent's last will and testament, dated February 4, 1937, contained the following paragraph:

3. I DEVISE AND*647 BEQUEATH all my real and personal Estate whatsoever and wheresoever not hereby or by any Codicil hereto otherwise specifically disposed of (including any real or personal property over which I may have any general power of appointment and including also any entailed property of which I have power to dispose by Will) unto my Trustees Upon Trust to realize the same and to divide the same equally between and among themselves my said three Sons.

The Federal estate tax return filed by petitioner did not report as part of decedent's gross estate any portion of the corpus of the trust. The Commissioner, in his notice of deficiency dated November 29, 1940, included in decedent's gross estate the full value of the corpus of the trust as of the date of death of decedent.

OPINION.

ARUNDELL: The only question presented is whether or not the transfer of property by decedent in trust in 1903 was within the scope of section 811(c) of the Internal Revenue Code. ¹ Petitioner contends that, inasmuch as the trust was created prior to the enactment of the Revenue Act of 1916, which contained the first Federal estate tax, the Fifth Amendment to the Constitution prohibits the inclusion in the*648 decedent's estate of the property transferred in trust. It maintains *805 that the creation of the trust was not a transfer intended to take effect in possession or enjoyment at or after decedent's death. Respondent argues that the taxation of the trust property as a part of decedent's estate is not a retroactive application of section 811(c). He asserts that the transfer is clearly within section 811(c) and cites as authorities for this contention Helvering v. Hallock,309 U.S. 106, and Estate of Mary H. Hughes,44 B.T.A. 1196.

*649 The trust was to continue during the lives of decedent and her daughter, the income going first to the former and then to the latter, and upon termination the principal was to be delivered to the issue of the daughter. In default of issue the remainder was to go as decedent might appoint by will; in default thereof, as the daughter might appoint by will; and in default thereof, to decedent's next of kin as by intestacy.

The reservation of decedent's life estate could not by itself justify the proposed deficiency, Nichols v. Coolidge,274 U.S. 531, but respondent's principal contention is based upon the provisions of the trust instrument that the daughter, unless she survived decedent, would have taken nothing by her life estate, and her issue, unless they survived both decedent and their mother, would have taken nothing, and decedent would have been in a position to appoint the remainder. This, respondent argues, can not be distinguished in substance from a possibility of reverter and consequently the Hallock doctrine must govern.

In the view we take of this proceeding, however, it is unnecessary to decide that question, for we are of opinion that*650 in any event section 811(c) may not validly be applied to the facts of this case. We thus do not consider whether a power of appointment constitutes an interest in property. Cf. Porter v. Commissioner,288 U.S. 436; United States v. Field,255 U.S. 257, 263; Estate of John S. Conant,41 B.T.A. 739; Meta Biddle Robinette,44 B.T.A. 701, reversed, 129 Fed.(2) 832. It may not be amiss, however, to point out that decedent's death did not determine the devolution of the trust estate. While she exercised her reserved power in her will to the extent that she was able, it is impossible to say whether anything will ever pass by virtue of that appointment. The daughter survived with two children of her own. If either of the children or any other child of the daughter survives the mother the corpus will go to that child upon termination of the trust and in accordance with its terms rather than *806 to decedent's tentative appointees. Thus it can not be said here, as in *651 Commissioner v. Flanders, 111 Fed.(2d) 117, that decedent's death destroyed a possibility of reverter or brought into being remainders over which the issue had full dominion. See Estate of Frederick Bodell,47 B.T.A. 62; Commissioner v. Washer, 127 Fed.(2d) 446.

The retroactive application of taxing statutes is not necessarily unconstitutional. Welch v. Henry,305 U.S. 134. "It is necessary to consider the nature of the tax and of the decedent's gift." Milliken v. United States,283 U.S. 15. If the donor voluntarily makes a gift absolute and beyond recall, which he might well have refrained from making could he have foreseen the enactment of a later estate tax, the transfer may not validly be taxed as intended to take effect at death, although a life estate is reserved to the donor. Nichols v. Coolidge, supra.Similarly, with respect to a completed gift and a subsequently enacted gift tax. Untermyer v. Anderson,276 U.S. 440. If, however, the transfer is not complete in the sense that the grantor may, in the light of the subsequent enactment, *652 amend or revoke and thereby relinquish any strings he may have attached to the gift or undo what he has previously done, he is in no position to complain that the statute is retroactive if he voluntarily chooses not to exercise these powers. Reinecke v. Northern Trust Co.,278 U.S. 339; Saltonstall v. Saltonstall,276 U.S. 260; Porter v. Commissioner, supra;Commissioner v. Chase National Bank, 82 Fed.(2d) 157, certiorari denied, 299 U.S. 552. See United States v. Jacobs,306 U.S. 363, holding section 302(e) of the 1924 Act valid as applied retroactively to tax the full value of a joint tenancy, where the Court stated that "Until the death of her co-tenant, the wife could have severed the joint tenancy and thus have escaped the application of the estate tax of which she complains." Nor does the Constitution prohibit the imposition of a tax under a statute enacted after the transfer where an earlier statute in force at the time of the transfer contained similar provisions so that the grantor was on notice of the nature of the tax and the possibility of increased rates. *653 Milliken v. United States, supra;Klein v. United States,283 U.S. 231; Helvering v. City Bank Farmers Trust Co.,296 U.S. 85. But if, notwithstanding the reservation of powers in the decedent, the transfer is in effect beyond recall, as for example where the power to revoke is exercisable only with the consent of an adverse interest, a retroactive tax imposed solely by reason of the ineffective power reserved is invalid. Helvering v. Helmholz,296 U.S. 93; White v. Poor,296 U.S. 98; Commissioner v. Flanders supra (Trust No. 3).

With these general principles in mind we think it clear under the facts of the present case that section 811(c) may not validly be invoked. The trust was created many years before enactment of the first Federal estate tax and decedent could not reasonably have *807 anticipated the nature of the section sought to be applied. The trust was irrevocable, since she retained no power to revoke. *654 Garner v. Germainia Life Insurance Co.,110 N.Y. 266; 18 N.E. 130; Dickey v. Goldsmith,60 Misc. 258; 111 N.Y.S. 1025; Scott on Trusts, sec. 330. Decedent retained no power to amend or modify during her life. The reserved power of appointment, conditioned not only upon termination of the trust which will occur after her death but upon the survival or nonsurvival at that time of the issue of the second life tenant, gave decedent no power to recall the gift nor to relinquish any retained interests which might make the subsequent statute operative. While we agree with respondent that substance rather than form should govern, it does not suffice to say that the gift was incomplete because until decedent's death it was impossible to determine who would enjoy the remainder. In fact, it is still impossible to determine that. The transfer was beyond decedent's control at all times after enactment of the statute. To apply section 811(c) in these circumstances would, we think, be as arbitrary as was the attempted application of its forerunner to the facts appearing in *655 Nichols v. Coolidge, supra.

This disposition makes unnecessary any findings as to the values of the several interests involved or any consideration of petitioner's alternative contention that in any event the value of the daughter's life interest should be excluded from the decedent's gross estate.

Decision will be entered for the petitioner.