REVISED United States Court of Appeals,

Fifth Circuit.

No. 96-41103.

Nelda Huebner LEGGETT, In the Matter of the Estate of Nelda Huebner Leggett, Deceased, et al., Plaintiffs,

v.

UNITED STATES of America, Defendant-Appellee,

v.

Patricia Huebner SCHUETTE, Defendant-Appellant.

Sept. 4, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this tax case, we review a judgment that Patricia Huebner

Schuette had a state property interest in property bequeathed to

her by her aunt, despite the fact that she had filed a timely

disclaimer and never took possession of, or exercised control over, the property. The district court held that a federal tax lien had

attached to the property and the disclaimer was ineffective. We

reverse.

I.

The relevant facts are not in dispute. In 1995, Schuette owed

the Internal Revenue Service ("IRS") nearly $20,000. In May 1995,

Schuette's aunt, Nelda Leggett, died testate, leaving one-twentieth

1 of her estate, or $19,500, to Schuette. In June 1995, executors

were appointed for Leggett's estate. The executors have

distributed all of the estate's assets to the beneficiaries, except

for Schuette's share.1

In August 1995, Schuette filed a disclaimer of all rights and

interests in Leggett's estate. She believes that her disclaimed

share should go to her children, Melissa Ann Oakes and Donald Van

Schuette II. In September 1995, the estate filed in county court a

petition to quiet title and for declaratory judgment.

Specifically, the estate requested that the court declare that the

IRS has no lien against the estate's property.

The IRS removed the case to federal court.2 Because the facts

were uncontested, all parties moved for summary judgment. The IRS

asked the court to rule that its lien is valid, and Schuette asked

the court to hold that the United States has no interest in the

property. The estate expressed disinterest in this question but

requested attorney's fees and costs under TEX. CIV. PRAC. & REM.CODE

ANN. § 37.009 (Vernon 1986) (authorizing the award of fees and

1 In August 1995, the estate sold certain property. In exchange for the IRS's release of its lien against that property, the estate paid the IRS 1/20 of the proceeds, or $2,515.95. The IRS credited this money against Schuette's debt and rejected the estate's request for a refund. Although our opinion makes it evident that the IRS's position was incorrect, neither party challenges these actions on appeal. We leave the proper resolution of this issue to whatever further proceedings there may be among the parties. 2 Under

(a)(1), federal district courts have jurisdiction over actions to quiet title to land on which the United States claims to have a lien. Under

, such actions are removable.

2 costs in a declaratory action case when "equitable and just").

In August 1996, the district court held in favor of the IRS.

Instead of deciding the fees issue, the court sua sponte remanded

it to the state court. This had the effect of disposing of all

claims in the federal case.

II.

A.

The only issue before us is whether the district court

correctly interpreted federal and state law in determining whether

a federal lien attached to Schuette's share of Leggett's estate.

Questions of law resolved on summary judgment are reviewed de novo.

See BellSouth Telecomms., Inc. v. Johnson Bros. Corp.,

(5th Cir. 1997).

When a person fails to pay his taxes, all property rights

that he has or acquires thereafter immediately and automatically

are subject to a federal tax lien, see

, that is

not subject to any state laws that govern ordinary liens or to any

perfection requirements, see United States v. Security Trust & Sav.

Bank,

,

,

(1950).

Section 6321 is intended to be broad in scope and applies to every

interest the taxpayer has in property. See United States v.

National Bank of Commerce,

,

,

(1985). The section does not, however,

create or define what constitutes a property interest. Instead,

state law determines whether a taxpayer has a property interest to

which a federal lien may attach. See

,

2925-26; United States v. Bess,

,

,

(1958). Therefore, we must decide whether,

under Texas law, Schuette ever had a property interest in Leggett's

estate.

B.

1.

Texas probate law contains two provisions that bear on our

determination. The Texas Probate Code provides that "when a person

dies, leaving a lawful will, all of his estate devised or

bequeathed by such will, and all powers of appointment granted in

such will, shall vest immediately in the devisees or legatees of

such estate and the donees of such powers...." TEX. PROB.CODE ANN.

§ 37 (Vernon Supp. 1997). This rule prevents any lapse in title,

insures that someone always is responsible for property taxes,

allows family settlements agreements, see In re Estate of Hodges,

(Tex.App.—Amarillo 1986, writ ref'd n.r.e.),

guarantees that the beneficiaries will receive any income generated

by the estate, see Hurt v. Smith,

(Tex. 1987), and

prevents a beneficiary from criminal prosecution for using estate

property, see Palmer v. Texas,

(Tex.App.—Houston [1st Dist.] 1988, no pet.).

Texas law also provides for the possibility of a disclaimer or

renunciation of an inheritance:

Any person ... who may be entitled to receive any property as a beneficiary and who intends to effect disclaimer irrevocably ... shall evidence same as herein provided. A disclaimer evidenced as provided herein shall be effective as of the death of decedent and shall relate back for all purposes to the death of the decedent and is not subject to

4 the claims of any creditor of the disclaimant. Unless the decedent's will provides otherwise, the property subject to the disclaimer shall pass as if the person disclaiming ... had predeceased the decedent....

TEX. PROB.CODE ANN. § 37A(flush) (Vernon Supp. 1997). A disclaimer

must follow a certain form, see id. § 37A(a), and is irrevocable,

see id. § 37A(d). It must be made within nine months of death, see

id. § 37A(a), and cannot be made if the disclaimant has used the

property, see id. § 37A(g). A disclaimer is distinct from an

assignment, which is a gift from an assignor to an assignee of

inherited property. See id. § 37B(d).

These provisions are somewhat contradictory. Section 37

states that the intended beneficiary had a vested property right

from the moment of death, while section 37A teaches that the

intended beneficiary never had a property interest at all.

Determining which provision is real and which is the fiction

decides this issue.

2.

There are two plausible ways to view the statutory scheme. We

could regard § 37 as the reality and § 37A as a legal fiction.

Under this view, the intended beneficiaries own the estate's

property at the moment of death. If one of them files a valid

disclaimer, the property is transferred to other beneficiaries.

The legislature, cognizant of the tax consequences of such a

transfer, adopted the legal fiction that the intended beneficiary

never owned the property. The IRS urges this view, which we will

call the "Transfer Theory."

The second possibility is that § 37A is the reality and § 37

5 is the legal fiction. Under this theory, property at death goes to

the estate of the decedent. The intended beneficiaries may accept

or reject their inheritances. If one accepts, the law engages in

the legal fiction that he owned the property from the moment of

death, thus ensuring the continuity of title and responsibility to

pay taxes. Schuette urges this theory, which we will call the

"Acceptance-Rejection Theory."

The difference is vital to the outcome of the case. Under the

Transfer Theory, Schuette had a property right in Leggett's estate,

so the federal lien attached and prevented her from making a

disclaimer. Under the Acceptance-Rejection Theory, Schuette never

had a property right, as she never accepted the inheritance, so

there was nothing to which a federal lien could attach.

C.

At common law, a beneficiary of a will had the power to accept

or reject a legacy or devise. The reason was that no person could

be made an owner against his consent. An heir at law, on the other

hand, became the owner of the property, irrespective of whether he

wanted it. Presumably, a contrary rule would allow an heir to

defeat an entail.

This distinction had two negative effects. First, it forced

heirs to take possession of property they did not want.3 Second,

3 There are many situations, in addition to Schuette's, in which a person rationally might prefer not to accept an inheritance. For example, a person might be offered a plot of real property with several troublesome tenants. The cost in time and aggravation of dealing with the tenants easily might outweigh the value of the property.

6 it had unintended tax consequences. A disclaiming beneficiary of

a will was not subject to gift tax liability, see, e.g., Brown v.

Routzahn,

(6th Cir. 1933), while a disclaiming heir

was subject to tax liability, see, e.g., Hardenbergh v.

Commissioner,

(8th Cir. 1952), aff'g

,

(1951).

The purpose of the disclaimer law is to rectify this

common-law anomaly by putting an heir in the same position as a

beneficiary of a will. That is, the purpose is to state that no

person, whether heir at law or intended beneficiary of a will, can

be forced to take inherited property against his will. See UNIF.

DISCLAIMER OF TRANSFER BY WILL, INTESTACY OR APPOINTMENT ACT § 1 comment, 8A

U.L.A. 166, 166-68 (1993). This, of course, is the Acceptance-

Rejection Theory.

The Texas courts have adopted this view of § 37A: "This

"relation back' doctrine is based on the principle that a bequest

or gift is nothing more than an offer which can be accepted or

rejected." Dyer v. Eckols,

(Tex.App.—Houston

[14th Dist.] 1991, writ dism'd by agr.). In fact, "acceptance of

the inheritance occurs "only if the person making such disclaimer

has previously taken possession or exercised dominion and control

of such property in the capacity of beneficiary.' "

at 534

(quoting TEX. PROB.CODE ANN. § 37A(f) (Vernon Supp. 1991)).

Because the Dyer court adopted the Acceptance-Rejection

Theory, it discarded the notion that a disclaimer could be a

fraudulent transfer, reasoning that a transfer is impossible unless

7 the "transferor" had rights in the thing "transferred." Because a

disclaimant "never possesses the property," he cannot transfer it.

Id.; accord Simpson v. Penner (In re Simpson ),

, 452-

53 (5th Cir. 1994) (per curiam) (stating that this is the law in

Texas).

This settles the instant dispute. Under Texas law, Schuette

had the right to accept Leggett's intended gift by taking

possession of it, by exercising control and dominion over it, or by

taking no action within the set time. She also had the right to

reject Leggett's intended gift by filing a valid disclaimer within

nine months. This right of decision was not, itself, a property

right under Texas law. Because Schuette rejected the intended

gift, she never had a property right. Therefore, the federal lien

had nothing to which to attach.

III.

A.

Texas's disclaimer statute is based on a uniform act and,

therefore, is similar to acts in other states. We recognize that

the Second and Ninth Circuits have come to different conclusions

from each other, interpreting New York and Arizona law,

respectively. Compare United States v. Comparato,

(2d Cir. 1994) (holding that a disclaimer was rendered ineffective

by a federal tax lien) with Mapes v. United States,

(9th Cir. 1994) (holding that, because of a timely disclaimer,

the federal tax lien did not attach). Because New York law is

substantially different from Arizona's or Texas's, these cases are

8 reconcilable.

The Second Circuit, citing In re Estate of Scrivani,

,

(N.Y.Sup.Ct. 1982), stated that the

New York statute "creates a legal fiction that allows distributees

to avoid attachment by creditors or the payment of taxes."

Comparato,

. The view that the disclaimer is a legal

fiction is the Transfer Theory and supports the holding that a

property right existed before the disclaimer.

In Scrivani, the conservator of Julia Molinelli, an

incompetent person, sought to renounce Molinelli's inheritance.

See

,

. The problem was that

a transfer of a "resource considered available" would have made

Molinelli ineligible for Medicaid benefits.

(5)(a) (McKinney 1992 & Supp. 1997). The court, therefore, was

forced to determine whether a renunciation of an inheritance

constitutes the transfer of a resource.

At first, the court appeared to follow the Texas view that

"[t]he law forces no one to accept a gift." Scrivani,

,

. The court, however, then held that the

Molinelli had "an inchoate property interest" in the right to

accept the inheritance.

,

; cf. Adam

J. Hirsch, The Problem of the Insolvent Heir, 74 CORNELL L.REV. 587,

601-03 (1989) (arguing that Scrivani is internally contradictory).

Therefore, the court reasoned, renouncing the inheritance would

constitute the transfer, or rather the waste, of an available

9 resource.4

Because the Comparatos had a property interest in their right

to accept the inheritance, the federal tax lien attached to it.

Therefore, the Comparatos could not destroy that asset by

disclaiming the underlying inheritance. It should be evident,

however, that this conclusion derives from the manner in which the

New York courts have interpreted that state's disclaimer statute.

As we have explained, Texas law follows the Acceptance-

Rejection Theory and does not recognize a property interest in the

right to accept a bequest. Our decision today, therefore, is not

in conflict with Comparato.

B.

Similarly, the Ninth Circuit's decision in Mapes does not

actually conflict with Comparato. There, the court was construing

an Arizona statute that had not (and still has not) been

interpreted by its courts. Thus, the Ninth Circuit assumed that

Arizona's view of its statutory scheme would follow the majority

rule that Texas follows.5 Thus, it may be presumed that Arizona,

unlike New York, follows the Acceptance-Rejection Theory and does

not recognize a property interest in the right to accept a bequest.

4 See Scrivani,

,

; see also In re Molloy v. Bane,

,

(N.Y.App.Div. 1995) (stating, under similar facts, that "petitioner's renunciation of a potentially available asset was the functional equivalent of a transfer of an asset"). 5 See Mapes,

; see also Robert M. Hoffman & Aaron L. Mitchell, Deceptive Trade Practices and Commercial Torts, 45 SW. L.J. 1667, 1710 (stating that Texas follows the majority rule); cf. Frances Slocum Bank & Trust Co. v. Estate of Martin,

(Ind.Ct.App. 1996) (adopting Dyer ).

10 The fact that three states have adopted similar statutory

schemes does not necessarily mean that the law functions the same

way in each state. New York law creates a property interest in an

intended beneficiary's right to accept a gift and may follow the

Transfer Theory. Arizona and Texas do not. It is one of the

complexities (and, ultimately, one of the strengths) of the federal

system that different states may interpret similar statutes in very

different ways.

IV.

A.

We pause to address two of the IRS's arguments for ignoring

the plain import of Texas law in determining the existence of a

state property right. In United States v. Irvine,

,

,

(1994), the Court held that the

disclaimer of a remainder interest in a trust after a reasonable

time had passed was a taxable gift, even though the interest was

created before the passage of the gift tax. See

,

. The Court's interpretation of the gift tax does not

dictate this court's interpretation of § 6321.

Section 6321 adopts the state's definition of property

interest. Title

(a), which defines "transfer" and

"property" for purposes of the gift tax, does not adopt state law.

Instead, it aims to reach "every species of right or interest

protected by law and having an exchangeable value." Jewett v.

Commissioner,

,

,

(1982) (quoting S.REP. NO. 72-665, at 39 (1932); H.R.REP. NO.

11 72-708, at 27 (1932)).

In dictum, the Court recognized the conundrum that we face

today and the Second and Ninth Circuits have faced in the past:

Although a state-law right to disclaim with such consequences might be thought to follow from the common-law principle that a gift is a bilateral transaction, requiring not only a donor's intent to give, but also a donee's acceptance, state-law tolerance for delay in disclaiming reflects a less theoretical concern. An important consequence of treating a disclaimer as an ab initio defeasance is that the disclaimant's creditors are barred from reaching the disclaimed property. The ab initio disclaimer thus operates as a legal fiction obviating a more straightforward rule defeating the claims of a disclaimant's creditors in the property disclaimed.

Irvine,

,

(citations

omitted). The Court recognized that the right to disclaim might,

under state law, be based on the Acceptance-Rejection Theory and,

therefore, not be a legal fiction. The Court then pointed out that

allowing a late disclaimer,6 on the other hand, can be explained

only as a rule aimed at frustrating creditors.

Because the Texas statute does not allow late disclaimers, it

is based solely on the Acceptance-Rejection Theory. Thus, treating

this rule as a non-fiction, as Texas caselaw requires, is fully

consistent with the principles laid down in Irvine.

B.

In United States v. Mitchell,

,

In Irvine, the disclamation occurred 62 years after the trust's creation. See

,

. Texas law, by contrast, prohibits a disclaimer filed more than nine months after death. See TEX. PROB.CODE. ANN. § 37A(a) (Vernon Supp. 1997). It is worth noting that the disclaimer in Comparato was filed over seven years after the devisor's death. See

.

12 1763, 1765,

(1971), Anne Goyne Mitchell, upon

divorce, renounced her right to the proceeds of the marital

community (and the corresponding obligation to pay the debts of

that community).7 Mitchell argued that, because she had renounced

the community income, she was not responsible for the corresponding

tax liability. See

,

.

The Court noted that tax liability follows ownership and,

therefore, if Mitchell ever had ownership of the income, she was

liable for the tax. See

,

. The

Court proceeded as we do today, examining the state law in great

detail. See

,

. The Court

determined that, under Louisiana law, the wife had a property

interest in the community's income from the moment of inception,

rather than "a mere expectancy."

,

(quoting Phillips v. Phillips,

,

(1926), overruled by Creech v. Capitol Mack, Inc.,

(La. 1973)).

It should be evident that we have followed the same

methodology as did the Mitchell Court. Like that Court, we have

examined state law to determine whether it creates a property

interest. Unlike the statutory scheme considered in Mitchell,

Texas law did not create a property interest for Schuette in

Leggett's estate. Although the IRS correctly argues that Mitchell

7 See LA. CIV.CODE art. 2410 (1870) ("Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.").

13 "underscored the supremacy of federal law with respect to the

taxation of state created property interests," Mitchell does not

disturb the principle that a federal tax lien cannot attach in the

absence of a state-created property interest.

V.

In closing, we note that Congress easily can expand the IRS's

lien power, if it so desires. For example, Congress can follow

what it did with § 2511(a), and define property more broadly than

state law does. Alternatively, Congress simply can prohibit

persons subject to § 6321 from filing disclaimers. We decline the

IRS's invitation to rewrite the law ourselves, as that power lies

exclusively in the legislative branch. See Rodriguez v. INS,

(5th Cir. 1993).

REVERSED.

14