Opinion
Docket Nos. 42545 50153 50154.
1955-10-31
ESTATE OF FRANK H. KNIPP, DECEASED, HOWARD F. KNIPP, EXECUTOR, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENTHOWARD F. KNIPP, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Randolph E. Paul, Esq., Julian N. Stern, Esq., and Carolyn E. Agger, Esq., for the petitioners. Paul Waring, Esq., for the respondent.
1. The decedent and petitioner Howard F. Knipp were on the calendar year basis for reporting income, and the partnership, of which they were the sole members with equal rights to share in profits, operated on the basis of a fiscal year ending January 31. The partnership agreement provided, in effect, that if a partner died during a taxable year of the firm his share of the profits would be the amount which he was entitled to receive as ‘salary.’ Held, that the death of decedent on November 21, 1947, terminated the partnership's taxable year. Held, further, that one-half of the partnership's profits to the date of death of the decedent less the amount withdrawn as ‘salary,‘ is not includible in the gross estate of the decedent as value of a property interest in the earnings of the partnership.
2. The partnership held 11 policies of insurance on the life of the decedent, 10 of which had been assigned to it by the insured. It was the beneficiary of the unassigned policy but the insured had the right to change the named beneficiary. The partnership paid the premiums on all of the policies. Held, that the proceeds of the 10 assigned policies are not includible in gross estate of the decedent under subsections (A) or (B) of section 811(g), I.R.C. 1939, and that the proceeds of the unassigned policy are a part of the decedent's gross estate under subsection (B). Randolph E. Paul, Esq., Julian N. Stern, Esq., and Carolyn E. Agger, Esq., for the petitioners. Paul Waring, Esq., for the respondent.
These consolidated proceedings involve deficiencies in income and estate tax as follows:
+-----------------------------------------------------------------+ ¦Docket¦ ¦ ¦ ¦ ¦ +------+--------------------------+--------+----------+-----------¦ ¦No. ¦Petitioner ¦Tax ¦Year ¦Deficiency ¦ +------+--------------------------+--------+----------+-----------¦ ¦42545 ¦) ¦( Estate¦ ¦$120,980.52¦ +------+--------------------------+--------+----------+-----------¦ ¦50154 ¦) Estate of Frank H. Knipp¦( Income¦1/1/47 to ¦18,500.36 ¦ +------+--------------------------+--------+----------+-----------¦ ¦ ¦ ¦ ¦11/21/47 ¦ ¦ +------+--------------------------+--------+----------+-----------¦ ¦50153 ¦Howard F. Knipp ¦Income ¦1947------¦351,892.70 ¦ +-----------------------------------------------------------------+
Refunds are claimed in Docket Nos. 42545 and 50154. The issues not conceded on brief or settled by stipulation are:
Docket Nos. 50153 and 50154.
1. Whether the death of Frank H. Knipp terminated the partnership for income tax purposes.
Docket No. 42545
1. Whether the value of the interest of the decedent in the partnership of John C. Knipp & Sons should include the amount of $154,972.05 representing one-half of the partnership income in 1947 prior to his death on November 21, 1947;
2. Whether the proceeds of certain insurance policies on the life of decedent, totaling $90,512.32, are includible in his gross estate; and
3. Whether the value of the decedent's interest in the partnership should be reduced by the amount of $4,328.34 as his share of the partnership liability to the United States Maritime Commission for interest as of January 31, 1947.
FINDINGS OF FACT
The facts set forth in the stipulation of facts are so found.
Howard F. Knipp, the petitioner in Docket No. 50153, hereinafter referred to as Howard, is the executor of the Estate of Frank II. Knipp, deceased, his uncle, hereinafter referred to as Frank, who died testate on November 31, 1947. Howard kept his books and filed his income tax returns for 1947 and 1948 on the calendar year basis. His income tax returns and the estate tax return were filed with the collector of internal revenue for the district of Maryland.
The firm of John C. Knipp & Sons has been engaged in the retail furniture, interior woodwork, and ship-fitting business since 1868. On July 7, 1943, Frank, Howard, and John C. Knipp, a brother of Howard, hereinafter referred to as John, entered into a partnership agreement for the conduct of the firm hereinafter referred to for convenience as the partnership. Profits and losses of the partnership were to be shared on the basis of 40 per cent to Frank and Howard, and 20 per cent to John. An annual salary of $25,000 each was to be paid to Frank and Howard and $15,000 to John, payable on a monthly basis. Paragraph Eleven of the partnership agreement reads as follows:
Eleven. It is agreed among the partners hereto, anything in this agreement to the contrary notwithstanding, that in the event of any partner's death, the amount to the credit of said deceased partner on the firm's books on February 1, 1943, or on February 1st in any subsequent year, provided the partnership has run for twelve consecutive months; otherwise the date of settlement shall be as of the prior February 1st, less the amount of his withdrawals over salary, shall be paid to the Executors for Administrators of said deceased partner, and same shall be in full settlement of the deceased partner's interest in said partnership.
The purpose of the provision was business convenience.
The partners had an oral understanding that the capital account of a deceased partner at the start of the fiscal year in which his death occurred would be subject to any adjustments made by the partnership on work completed and reflected in the account.
The agreement did not contain a provision for continuation of the partnership in the event of death of a partner.
Under the partnership agreement, Frank had no right to share in partnership earnings for its fiscal year in excess of his contractual drawings unless he survived to the end of the partnership's fiscal year. Similarly, if the partnership income was insufficient to cover the partners' contractual drawings in any year, a partner who died during the year could not be charged with any part of the decrease in net partnership assets and was entitled to his full contractual drawings or ‘salary.’
The partnership kept its books and filed returns on the basis of a fiscal year ending January 31.
John withdrew from the partnership as of August 1, 1945. The settlement agreement entered into with Frank and Howard provided that John's share of profits and losses would be 20 per cent of the profits and losses on contracts outstanding on August 1, 1945, ‘whether completed, re-negotiated subject to re-negotiation or in the course of re-negotiation or uncompleted.’
On August 1, 1945, the partnership had uncompleted contracts, including contracts with the United States Maritime Commission, hereinafter referred to as Maritime, for the fitting of ships, which contracts were subject to renegotiation. On October 30, 1947, Maritime filed a claim against the partnership for $322,461 for progress payments erroneously made for work canceled on March 8, 1944. The payments were reported as income in the year of receipt. On November 21, 1947, the partnership made a counterclaim for additional amounts due to it for work on ships. The counterclaim was allowed on February 21, 1949, in the amount of $177,733.05 as an offset against the overpayment of $322,461. The balance of 4144,727.95 was paid by checks issued in 1949 and 1950 by John C. Knipp & Sons.
After John withdrew from the partnership Frank and Howard continued to operate the business under the partnership agreement of July 7, 1943, except for an oral amendment to provide for an equal division of the profits.
About September 1945 Maritime canceled further work by the partnership on 10 vessels. Thereafter, the partnership filed a termination claim against Maritime which was still unsettled on November 21, 1947.
In April 1951 ‘Howard F. Knipp, as partner and as executor of the estate of Frank H. Knipp, deceased partner and John C. Knipp, as partner, doing business as John C. Knipp & Sons (herein called ‘Contractor’) signed a final settlement agreement as of March 6, 1950, with Maritime in respect to a termination claim on the contracts canceled in 1945. The agreement took into account certain credits to Maritime for supplies which had been taken over by the contractors on the termination of the contracts and progress payments which the contractor had received before the contracts were terminated. In settlement the parties agreed that Maritime had overpaid the contractor by $81,064.09 and that the contractor owed Maritime $16,005.25 for interest on an overpayment made on April 20, 1946, in the amount of $185,500, which overpayment the contractor had repaid in September and October, 1947. The compromise settlement was approved by the Department of Justice on October 1, 1951. Of the agreed liability for interest, $8,656.67 was for the period to January 31, 1947. Such interest was not claimed as a deduction in the partnership return filed for the year ended January 31, 1947, but was allowed by the respondent as accrued interest in adjusting the net income of the partnership for that period. The amount reported in the estate tax return as the value of Frank's interest in the partnership was not reduced by one-half, or $4,328.34, of such interest of $8,656.67. The capital account of Frank on the books of the partnership was charged as of January 31, 1947, with $4,328.34 for his alleged share of the interest to that date.
On November 21, 1947, the partnership had contracts with Maritime which were subject to profit limitations under the Vinson-Trammel Act. Its work under some of the contracts was completed during the fiscal year ended January 31, 1947. The excessive profits received under the contracts were determined in 1949 or 1950 and were paid by the partnership.
On November 21, 1947, the partnership had unsettled claims for work for Maritime on ships at Savannah, Georgia, and for termination of the contract as to some of the ships covered by it. The contract price was also subject to adjustment for defective work done after that date. Work on contracts uncompleted on November 21, 1947, was continued after that date.
The inventory of the partnership was sold for cash, its machinery and building leased, and its pending contracts assigned to Knipp & Company, a corporation organized on February 1, 1948. The corporation completed the contracts so assigned to it. The partnership bank account was continued after February 1, 1948, in which rental income from a building was deposited.
The capital account of Frank on the books of the partnership had a credit balance of $226,320.90 on January 31, 1947, and $221,845.63 on the date of his death on November 21, 1947. Various entries in the account thereafter reduced the balance to $54, 875.96 on January 31, 1939.
The will of Frank provided for cash legacies of $137,000, including $50,000 to Howard, who was named residuary legatee. All of the legacies were paid except the one to Howard. The will provided that if the estate was not sufficient to pay all of the legacies in full, the legacies were to abate proportionately.
At the time of his death on November 21, 1947, Frank had 11 insurance policies of the value of $90,521.32 outstanding on his life, all of which, except one issued by the Sun Life Assurance Company of Canada of the value of $5,000, were assigned to John C. Knipp & Sons in or prior to 1931. The policy issued by the Sun Life Assurance Company of Canada was payable to the partnership. It was assigned to the Baltimore National Bank by Frank and the partnership on May 16, 1939. Under the assignment the bank had ‘all rights as to the cash surrender values, loans, dividends, and all other handling of policy without consent or signature of the insured.’ The policy was reassigned on July 31, 1945, by the bank to the partnership. The insured had the right to change the beneficiary at any time prior to his assignment of the policy. The cash value of all of the policies was set up on the books of the partnership as assets and the partnership used the policies as collateral for loans.
The partnership paid the premiums on the policies as they became due. The premiums paid on the policies before and after January 10, 1941, were $56,405.36 and $21,073.35, respectively.
The premiums were considered an expense of the partnership and deducted from gross income except for income tax purposes. None of the premiums was charged to the capital or drawing account of the partners. The increase of cash surrender value of the policies each year was considered income of the partnership, except for income tax purposes, and the value of the insurance as an asset of the partnership was correspondingly increased.
The income of the partnership from February 1, 1947, to the death of Frank on November 21, 1947, was $251,344.09. Included in the amount was $18,887.50 for ‘salary’ actually withdrawn by Frank prior to his death, and $1,812.50 to which he was entitled as ‘salary’ at the time of his death.
The return filed by the partnership for the fiscal year ended January 31, 1947, reported ordinary net income of $309.027.21, distributable in equal amounts to Frank and Howard. The return was signed by Howard.
A partnership return was filed for the fiscal year ended January 31, 1948, showing ordinary net income of $450,158.91, distributable, ‘In accordance with partnership agreement,’ $429,458.91 to Howard and $20,700 to the estate of Frank. The return was signed by Howard. A partnership return was also filed for the fiscal year ended January 31, 1949, showing ordinary net income of $11,754.33, all distributable to Howard ‘In accordance with partnership agreement.’
The income tax return of Frank for the period January 1, 1947, to November 21, 1947, reported the amount of $154,513.61 as the decedent's distributive share of the income of the partnership for the fiscal year ended January 31, 1947. Fiduciary income tax returns were filed for the estate of Frank for the period November 21, 1947, to December 31, 1947, and for the calendar year 1948. The return for the period in 1947 reported no partnership income. The return for 1948 reported net income of $25,542.37, including $20,700 of income from the partnership, and tax liability of $8,881.70, which was paid. In his determination of the deficiency against Frank for the period ended November 21, 1947, respondent increased taxable income by the amount of $20,700 for ‘salary’ received from the partnership during the taxable period.
Frank's interest in the partnership was included in his estate tax return at a value of $54,875.96. The 11 life insurance policies of the value of $90,512.32 were reported in the return but not included in the gross estate.
The adjustments made by the respondent in determining the deficiency in estate tax included the following amounts as additions to the net estate:
+----------------------------------------------------+ ¦Increase value partnership's interest¦$52,848.61 ¦ +-------------------------------------+--------------¦ ¦Salary owed by partnership ¦1,812.50 ¦ +-------------------------------------+--------------¦ ¦Partnership income to time of death ¦1 184,948.54¦ +-------------------------------------+--------------¦ ¦Insurance ¦2 90,512.32 ¦ +-------------------------------------+--------------¦ ¦ ¦ ¦ +----------------------------------------------------+
In his return for the calendar year 1948 Howard reported income of $405,646.60 from the partnership for the fiscal year ended January 31, 1948. In his determination of the deficiency against Howard for 1947 respondent held that the death of Frank on November 21, 1947, dissolved the partnership and terminated its accounting year as of that date, and, accordingly, included in his income, in addition to his distributive share of the profits of the partnership for the fiscal year ended January 31, 1947, the amount of $330,644.09 representing all of the income of the partnership for the period from February 1, 1947, to November 21, 1947, less $20,700 distributable to Frank, and the amount of $47,087.35 as income from the operation of the business as a sole proprietorship for the remainder of the calendar year 1947.
OPINION
JOHNSON, Judge:
Frank and Howard, members of the partnership, reported income on the basis of a calendar year. The partnership's taxable year ended on January 31. Involved in the proceedings relating to income tax is the basic question of whether the death of Frank on November 21, 1947, terminated the partnership and its accounting year for income tax purposes.
Petitioners concede that the death of Frank worked a dissolution of the partnership but, relying primarily on Heiner v. Mellon, 304 U.S. 271, as to Howard, and distinguishing Guaranty Trust Co. v. Commissioner, 303 U.S. 493, as to Frank, contend that the firm continued for liquidation purposes without a break in its taxable year until at least January 31, 1948. So arguing, petitioners say that Frank's ‘salary’ /1/ of $20,700 and Howard's share of the profits of the business are not taxable until 1948.
Respondent held in his determination of the deficiencies and asserts on brief that the death of Frank terminated the partnership for income tax purposes, with the result that the ‘salary’ of Frank, which the executor of his estate reported as income taxable in 1948, constitutes income taxable for the period January 1, 1947, to November 21, 1947, and that Howard is taxable in 1947 on not only his distributive share of the profits of the partnership to November 21, 1947, but, as sole proprietor, on the earnings of the business for the remainder of the calendar year 1947, contrary to the view of Howard, who included in his return for the calendar year 1948 all of the profits of the partnership for the fiscal year 1948 all of the profits of the partnership for the fiscal year ended January 31, 1948. Respondent says that the Guaranty Trust Co. case controls the ‘salary’ question as to Frank, and that that case and paragraph Eleven of the partnership agreement support his position as to Howard.
In Guaranty Trust Co., supra, the decedent, who filed his returns on the basis of a calendar year, died on December 16, 1933, while a member of a partnership whose fiscal year ended on July 31. The agreement of copartnership was such that the decedent's death dissolved the partnership, ended his right to share in the future profits, and fixed the date for an accounting of earnings by the survivors. Later, the surviving partners formed a new partnership and took over the business as of the time of the decedent's death, with a fiscal year ending July 31, 1934, and from year to year thereafter. In January and February 1934, the decedent's executor's received the decedent's share of the profits of the firm for the period from August 1, 1933, to December 6, 1933. The executors omitted the profits, so distributed, in the return filed for the decedent for the taxable period ended with his death, and the Commissioner included it in determining the deficiency. No contention was made by the taxpayer that the short period was not a ‘taxable year’ of the partnership within the meaning of section 182(a) of the Revenue Act of 1932, and the Court remarked that if such a contention had been made, it could not have prevailed. The issue before the Court was whether the phrase ‘any taxable year of the partnership ending within his taxable year'
appearing in section 182(a) supra, precluded inclusion in the income of the decedent for the short period ending with his death, his share of the profits of the partnership for that period, and also the share of the profits of the partnership for that period, and also the full fiscal year ending on July 31. The Court held that it did not.
1 The parties now agree that the correct amount is $154,972.05.Included under sec. 811 (g), I.R.C. 1939, on the ground that th e premiums were paid indirectly by the decedent. The parties stipulated that the value was $90,521.32
1. The partnership agreement classified the amount as salary. For tax purposes the amount constitutes a share of the profits of the business.A phrase of like import appears in sec. 188 of the Internal Revenue Code of 1939. 3. Non-acquiescense withdrawn, 1954-2 C.B. 6.
In Heiner v. Mellon, supra, one of the three equal partners in two partnerships died in 1919. Liquidation of the business continued thereafter to 1925, when the assets were sold in bulk. No new partnership agreements were entered into by the survivors. The partnership returns filed for 1920 listed the estate of the decedent as a member of the partnerships. The accounting period of the partnerships and the partners was the calendar year. The question was whether the surviving partners were taxable in 1920 on their distributive shares of the partnerships for that year. The Court said that dissolution of the partnerships by the death of one of the partners did not affect the liability of the survivors for tax on their distributive shares of the profits in the following year. It then pointed out that: Although dissolved, the partnerships and the business continued, since, as stated in the Pennsylvania Uniform Partnership Act: ‘On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.’ * * *
The Commissioner recognizes that the death of a partner does not ‘in itself’ terminate a partnership for income tax purposes; that ‘Ordinarily, a partnership will be treated as continuing where the business of the partnership, or a substantial portion thereof, is continued,‘ and that the returns of the continuing partnership should be filed on the basis previously established. Rev. Rul. 144, 1953-2 C.B. 212, 213. He does not require application of the ruling to changes occurring prior to January 1, 1954. Rev. Rul. 26, 1954-1 C.B. 153. In another ruling, Rev.Rul. 55, 1954-1 C.B. 153, with like conditions on retroactivity, the Commissioner held that where the estate of a deceased partner continues the decedent's interest during the winding period, the partnership continues during that period of liquidation.
Similar questions have been before this Court. In Mary D. Walsh, 7 T.C. 205, where there was no provision for continuation of partnership interests, we held that the death in 1939 of one of the three partners did not affect the taxable year of the partnership as to the surviving partners during the liquidation period.
Dissolution and complete liquidation of a partnership, accounting on a fiscal year basis, occurred within the calendar year 1941 of a partner in Anne Jacobs, 7 T.C. 1481, and we held that her distributive share of the profits for the fractional taxable year of the partnership was includible in income for 1941. See also Louis Karsch, 8 T.C. 1327.
By prior agreement the partnership interest of a deceased partner continued in Estate of Samuel Mnookin, 12 T.C. 744, affd. 184 F.2d 89. There, following Henderson's Estate v. Commissioner, 155 F.2d 310, reversing 4 T.C. 1001, we held that the accounting period of the partnership did not end with the death on December 1, 1943, of a partner and that the decedent's share of the earnings of the business for the period of its fiscal year from June 1, 1943, was not includible in his return for the taxable period January 1, 1943, to December 1, 1943. The case was cited in support of the conclusion reached in Girard Trust Co. v. United States, 182 F.2d 921, on facts materially the same.
Estate of Isidore Waldman, 15 T.C. 596, revd. 196 F.2d 83, involved facts similar to the Mnookin case. There, under the partnership agreement, the heirs or estate of a deceased partner could elect within 60 days to continue as a partner. The executor made a timely election but the surviving partners rejected it. Thereafter an agreement was reached under which the partnership was dissolved and liquidated as of January 31, 1946, a date within the partnership's fiscal year ending June 30. We held that the death of the decedent on November 22, 1945, did not end the taxable year of the partnership; that such year continued to January 31, 1946, when the partnership terminated, and that no part of the net income of the partnership for the period July 1 to November 22, 1945, was includible in the final return of the decedent for the period January 1 to November 22, 1945.
In Estate of Joseph E. Tyree, 20 T.C. 675, affd. 215 F.2d 78, as in Estate of Samuel Mnookin, supra, there was an agreement for continuation of the partnership, and we held, following the Mnookin case and this Court's ruling in the Waldman case, supra,
that the death of a partner did not terminate the taxable year of the partnership as to him.
The cases before us here involve both the interest of the deceased partner and the sole surviving partner, without an express agreement for continuing the business and an unusual provision as to profits for the partnership taxable year in which a partner should die. The proceeding involving Frank will first be considered.
The partners had a statutory right to select a taxable year for the partnership different from their own, section 188, coupled with a requirement in section 182, supra, that their shares of the earnings of the business for the taxable period so selected be included in their individual income tax returns for the taxable year in which the partnership year ended, whether or not distributed. They also had an unrestricted right to agree upon rates of participation in the profits of the enterprise.
The partners here agreed upon withdrawals of profits, designated as salary, at the rate of $25,000 per year for each, payable on a monthly basis. Paragraph Eleven of the partnership agreement expressly provided that upon the death of a partner there should be paid to his estate in full settlement of the decedent's interest the amount to his credit at the beginning of the partnership year, less withdrawals over ‘salary.’ The ‘salary’ payable to Frank prior to his death was $20,700, of which $18,887.50 was actually paid to him.
The effect of the agreement of the partners here was to fix the distributive share of a deceased partner in the partnership year in which his death occurred at an amount equal to the ‘salary’ payable to him for the period prior to his death. So limited by express agreement, no right passed from the decedent to his estate to receive any amount for inclusion in a fiduciary income tax return for a subsequent period. See sec. 126(a)(1)(A), I.R.C. 1939. The death of Frank eliminated the partnership as a continuing source of income to him as effectively as did the death of the partner in the Guaranty Trust Co. case, supra.
Howard so construed the agreement, as shown by the individual tax return he filed for 1948 in which he reported as taxable to him all of the ordinary net income of the partnership for its full accounting period, less the $20,700 distributable to Frank before his death.
See comment of the United States Court of Appeals, Commissioner v. Guaranty Trust Co., 89 F.2d 603.
Frank's death thus not only fixed the date of computation of his distributive share of the profits, but the amount thereof. The amount was earned during Frank's lifetime and no reason appears for delaying the reporting of such income until the end of an additional period, during which operations could not affect the amount of the share.
While there was no controversy in the Guaranty Trust Co., case as to the time of termination of the partnership year,
the rationale of the decision there, applied to the peculiar factual situation here, requires a conclusion that the partnership's taxable year as to Frank ended on the date of his death. Accordingly, we sustain the respondent on this point of the issue.
See Girard Trust Co. v. United States, supra; Estate of Isidore Waldman, supra; and Estate of Joseph E. Tyree, supra.
The peculiar facts of the case do not require a different conclusion as to Howard, the surviving partner.
The Mellon case, supra, is clearly distinguishable. There, the interest of the deceased partner continued with a right of his estate to share equally with the two surviving partners in the profits of the business during the liquidation period of about 5 years after dissolution. That situation did not prevail here.
Petitioners refer us to various provisions of the Uniform Partnership Act, in force in Maryland, which, they say, required liquidation proceedings and, therefore, a continuation of the business with usual tax consequences until the close of the fiscal year, even though only one partner survived.
We agree that some sort of a proceeding or transaction was necessary to bring about a termination of the partnership as a going business. Complete liquidation of the partnership involved in the Guaranty Trust Co. case, supra, and, therefore, termination of the taxable year, resulted from the transfer of the business, as of the date of the death of the decedent, to a new partnership organized by the surviving partners. The means employed here were equally effective to terminate the partnership for income tax purposes as of the date of death of Frank.
The partnership agreement not only gave Howard the right to all profits of the business after the death of Frank, but all of the net income earned prior thereto during the fiscal taxable year selected by the partners, except ‘salary’ distributable to Frank before his death. The agreement was so construed by Howard in reporting partnership income and making return of his and the estate's income, and no contrary contention is being made here by petitioners. The shares of partnership net income to Frank's death were thus determinable under the agreement and continuation of the business was unnecessary to determine distributive shares of partners, since operations could be only for the account of Howard.
Howard was not entitled to receive all of the net income after Frank's death, but under the partnership agreement concurrently with that event acquired all of the interest of Frank, and with it the assets of the business, for an amount determinable under paragraph Eleven of the instrument. But petitioners point out that Frank's interest was subject to debts of the partnership created while he was a partner. Such obligations would constitute claims against the estate of Frank, and, if allowable, would reduce by a corresponding amount the cost to Howard for Frank's interest. Any rights of creditors against the surviving partner could be pursued against him as the successor of the business.
To conclude, our opinion is that the partnership agreement settled all matters between the partners and terminated the taxable year of the partnership as to Howard at the time of Frank's death. Accordingly, the determination of respondent as to Howard is sustained.
In computing the value of the decedent's partnership interest for inclusion in his gross estate, respondent included an amount as the value of the decedent's share of the net income of the business for the period of its taxable year ending with his death. The parties agree that if the value should include earnings of Frank from that source, the correct amount is $154,972.05 representing one-half of net-income of the partnership for the period, less $20,700 distributable as ‘salary.’
The amount in controversy was not reported in the final income tax return of Frank, and, other than the $20,700, no amount was included by respondent in determining the deficiency. The income tax return of Howard for the calendar year 1948 included an amount for all of the net income of the partnership for the fiscal year ended January 31, 1948, less the $20,700 of earnings distributable to Frank for the period prior to his death. Respondent concedes on brief that Howard, under the partnership agreement, is taxable on all of the earnings for that period, and disagrees with petitioners only on the periods the profits are subject to tax.
While recognizing that the agreement entered into by the partners to determine their distributive shares of the earnings of the business makes the amount taxable to Howard and, therefore none taxable to Frank, respondent's action has placed him in a position of holding, in effect, that Frank had an interest in the earnings as property at the time of his death. He says that the value of the interest at death is not dependent upon the recipient of the earnings, while the gist of petitioners contention seems to be that if Howard is taxable on the earnings Frank could not have had an interest in them at his death. Respondent says our conclusion is controlled by Estate of Robert R. Gannon, 21 T.C. 1073. Petitioners disagree with that case and distinguish it.
The agreement in the Gannon case required a valuation of the net assets of the partnership at the beginning of each year and an equal proportionment among the three partners as their investment in the business. Other provisions provided that on the death of a partner the survivors could elect to continue the business or liquidate it. If continued under the option, the estate of a deceased partner was to receive for the interest of the decedent at his death the amount previously fixed by all of the partners as the value as the beginning of the year; nothing for earnings to the date of death. If the survivors elected to liquidate the business, the estate of a deceased partner was to receive one-third of the proceeds of liquidation. The survivors elected to continue the business and, thereafter, in accordance with the partnership agreement, paid to the estate the sum agreed upon as the value of the decedent's interest at the beginning of the partnership year. Nothing was paid to the estate of profits earned by the business to the date of the decedent's death. Our conclusion under the circumstances was that the decedent's share of the earnings of the partnership for the partnership year prior to his death should be included in the value of the decedent's interest for estate tax purposes. Distinguishable facts are present here.
The two partners in the Knipp partnership saw fit for business convenience to qualify their rights to earnings. If they survived the partnership year, each was to receive one-half of the profits as his distributive share, and if one died during the year, as was the case, his distributive share was, by the occurrence of that event, to be limited to the earnings distributable as ‘salary.’ The right to a share of earnings in excess of ‘salary’ was thus wholly contingent upon survival to the end of the accounting period, and until that contingency ceased to exist no partner had a vested interest in profits already earned. Frank never had during the crucial period more than a potential right to profits in excess of the amount designated as salary, and his death prevented that right from maturing. Not being entitled to any part of the $154,972.05 of profit at the time of his death, he had no interest to value for inclusion in his gross estate.
Death of a partner in the Gannon case did not, as here, completely destroy an unmatured right to a distributive share of earnings. Until the surviving partners exercised their option there remained the probability that liquidation would occur with the accompanying right of the estate of the deceased partner to profits. Here, liquidation was mandatory for the benefit of the survivor as to profits. The right of the decedent in the Gannon case to earnings was subject to a condition subsequent, and not a condition precedent, as here.
The difference in the facts in these proceedings call for a different conclusion. Accordingly, we find that no amount is includible in the estate of Frank as value for property interest in earnings of the partnership to the date of his death.
Under the settlement agreement entered into in 1951 with Maritime the partnership paid an amount for interest on an overpayment made in 1946. Of the amount paid, $8,656.67 was for interest accrued prior to January 31, 1947. One-half of the amount was charged to Frank's capital account as of January 31, 1947, and was allowed as a deduction by the respondent in determining the net income of the partnership for the year ended on that date. Notwithstanding such recognition of the amount as an accruable expense of the partnership, respondent now says on brief that the amount was not accruable prior to October 1, 1951, the date on which the Attorney General accepted the partnership's offer of settlement and requested payment of the interest, and that as the expense should have been borne in its entirety by Howard under paragraph Eleven of the partnership agreement the value of Frank's interest in the partnership for inclusion in gross estate should be increased by the amount of $4,328,34 charged to his capital account.
The action of respondent in allowing the amount of interest as a deduction in computing the net income of the partnership for the year ended January 31, 1947, infers a determination that liability to pay interest existed at all times after the overpayment was made by Maritime in April 1946. The liability to pay was sufficient to accrue the interest at the end of the year as a deductible expense. No reason appears, under the circumstances, for not adjusting the capital account of Frank to reflect the accrued liability. Accordingly, we sustain the petitioners on this issue.
At the time of Frank's death the partnership was the beneficiary of 11 policies of insurance on his life, the proceeds of which amounting to $90,512.32, the respondent included in the decedent's gross estate under the provisions of section 811(g) on the ground that the premiums were paid indirectly by the decedent. On brief respondent relies upon section 811(g)(2); set forth, in part, in the margin,
which was included in the Internal Revenue Code of 1939 by section 404(a) of the Revenue Act of 1942. Specifically, he says that proceeds of the insurance are includible in the gross estate of the decedent because the premiums were paid directly or indirectly by the decedent, and that at the time of his death the decedent possessed incidents of ownership exercisable either alone or in conjunction with another person.
SEC. 811. GROSS ESTATE.(g) PROCEEDS OF LIFE INSURANCE.—(2) RECEIVABLE BY OTHER BENEFICIARIES.— To the extent of the amount receivable by all other beneficiaries as insurance under policies upon the life of the decedent (A) purchased with premiums, or other consideration, paid directly or indirectly by the decedent, in proportion that the amount so paid by the decedent bears to the total premiums paid for the insurance, or (B) with respect to which the decedent possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. * * *
The parties agree that all of the policies were assigned to the partnership with the exception of the one issued by the Sun Life Assurance Company of Canada. As to it, respondent says its value is includible in gross estate on additional ground, namely, that the assured retained the right to change the beneficiary. Petitioners' reply to that contention is that the right to change the beneficiary was not retained in the assignment of the policy to the bank and when the bank reassigned the policy to the partnership the latter acquired the right to change the beneficiary.
The assignment to the bank as security for a loan was a contract separate and distinct from the contract of insurance. New York Life Insurance Co. v. Dunlevy, 214 F.1, affd. 241 U.S. 518. The partnership, as the designated beneficiary of the policy, had no more than an expectancy under the insurance, which it assigned to the bank, whose economic interest in the policy never exceeded the amount of the partnership's indebtedness to it. The partnership never had the right to change the beneficiary and, therefore, could not assign it. Upon payment of the debt to the bank its interest in the policy ceased and its reassignment to the partnership obviously was merely to transfer such rights as it had received from the partnership as assignee. Never having had a power of appointment over the policy, the partnership received none under the bank's reassignment. In short, the bank's transfer merely placed the parties where they stood before the first assignment was made. As the assured, decedent had the right to change the beneficiary, and that right continued to the time of his death.
The right of decedent to change the beneficiary was an incident of ownership and the proceeds of the policy are includible in gross estate under subsection (B) of section 811(g)(2). Estate of Judson C. Welliver, 8 T.C. 165; Estate of Eugene F. Saxton, 12 T.C. 569; Estate of Emil M. Goldblatt 16 T.C. 204; Fried v. Granger, 105 F.Supp. 564, affd. 202 F.2d 150.
The parties agree that the other 10 policies of insurance constituted assets of the partnership at the time of the decedent's death. Respondent included the proceeds of the insurance in gross estate upon the ground that the premiums were paid indirectly by the decedent. Such insurance is includible in gross estate under subsection (A) of section 811(g). On brief, while adhering to that view, he asserts that the proceeds are also includible under subsection (B),a provision independent of subsection (A). Petitioner argues that neither of the provisions requires the inclusion of the insurance as property possessed by Frank at his death. Thus, the difference between the parties is whether respondent's determination is sanctioned by either of the subsections.
Petitioner says that the answer to respondent's action under subsection (A) is found in what we said in Estate of George Herbert Atkins, 2 T.C. 332. Respondent seeks to distinguish that case upon the ground that it was decided under the statute before the amendment by the Revenue Act of 1942.
The precise question in the Atkins case was whether the policies of insurance held by and payable to a partnership on the life of the deceased partner were ‘taken out by the decedent upon his own life,‘ the premiums having been paid by the partnership. In deciding that question we discussed at considerable length the interest of a partner in firm assets and concluded that the funds used to pay the premiums constituted partnership property and that:
the decedent did not actually pay, directly or indirectly, any part of the insurance premiums with funds belonging to him. * * * It (the partnership) chose to invest some of its funds in acquiring an asset, viz., the three insurance policies. It had full control over them and all legal incidents of ownership. * * * (p. 342)
So concluding we decided that the insurance was taken out by the partnership rather than by the decedent upon his own life. While the death in that case occurred in September 1939, and the issue was controlled by the statute then in effect, the conclusion as to payment of the premiums was reached in the light of the amendment made by section 404 of the Revenue Act of 1942.
The purpose of the provision was to prevent avoidance of the estate tax. H.Rept. No. 2333, 77th Cong., 2d Sess., p. 162; S.Rept. No. 1631, 77th Cong., 2d Sess., p. 235. There is no indication here of a plan to avoid estate tax. To the contrary, the acquisition of the insurance appears to have been nothing more than the purchase of a partnership asset in the ordinary course of business. The funds so used were partnership property and the decedent's interest in the partnership was no more than his share of the profits and surplus, as defined in the partnership agreement. Flack's Ann.Code of Maryland, art. 73A, secs. 8 and 26.
Respondent quotes, without discussion, from Regulations 105 to the effect that a decedent pays the premiums if payment is made by a corporation which is his alter ego, or by a trust, the income from which is taxable to him. Like statements appear in the Committee reports, supra. There is such similarity here, for Frank's interest in profits never exceeded 50 per cent and Howard had at all times an equal voice as to partnership matters.
No reason appearing for departing from the reasoning of the Atkins case, supra, on this point, we conclude that the insurance proceeds are not includible in the gross estate under subsection (A).
Respondent relies upon the rationale of Commissioner v. Treganowan, 183 F.2d 288, reversing 13 T.C. 159, followed in Estate of William E. Edmonds, 16 T.C. 110, and Estate of Emil M. Goldblatt, supra, to support his present view that the decedent possessed incidents of ownership in the insurance at the time of his death.
In the Treganowan case the New York Stock Exchange, of which the decedent was a member at the time of his death, had a plan to pay $20,000 to, in general, the family or heirs of a deceased member. A member's right to designate a beneficiary under the plan, held to be insurance, was limited to the members of the designated group. The power of a member to sell his seat on the Exchange, with the insurance rights that would go with it, was regarded as sufficient to make him the owner of the insurance for the purposes of subsection (B). In the Goldblatt case it was stipulated that the ‘decedent possessed all of the incidents of ownership in both policies to the date of his death’ and, therefore, the question here was not before us for decision.
Respondent concedes that the insurance was an asset of the partnership and that Frank had no rights in the policies other than those flowing from his partnership interest. The inference from such concessions is that Frank, in his individual capacity, had no incidents of ownership in the policies, and respondent cites no specific fact of ownership.
One of the conclusions reached in the Atkins case, supra, in deciding that the policies of insurance were taken out by the partnership rather than by the decedent there, was that the firm had complete control over them and held all of the incidents of ownership. The material facts here are the same. Nothing in the Treganowan case requires a contrary conclusion. Decedent as an individual, had no power to exercise rights of ownership over the assets and sale of his partnership interest would not have transferred any rights in specific assets of the firm. United States v. Shapiro, 178 F.2d 459. Accordingly, we hold that the proceeds of the 10 policies do not constitute assets of Frank's estate.
Decisions will be entered under Rule 50.