Opinion
Docket Nos. 51124 51125 31130.
1956-01-18
ESTATE OF MARY LOIS K. McINTOSH, DECEASED, RUSSELL L. McINTOSH AND EMPIRE TRUST COMPANY, EXECUTORS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.ESTATE OF MARY LOIS K. McINTOSH, DECEASED, RUSSELL L. McINTOSH AND ST. LOUIS UNION TRUST COMPANY, TRUSTEES AND TRANSFEREES, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.ESTATE OF MARY LOIS K. McINTOSH, DECEASED, EUGENE KILPATRICK PERRY, TRANSFEREE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Arthur M. Conley, Esq., and Frederick Pope, Jr., Esq., for the petitioners in Docket Nos. 51124 and 51125. Raymond A. Carter, Esq., and Sidney D. Rosoff, Esq., for the petitioner in Docket No. 51130.
1. ESTATE TAX— GROSS ESTATE— SEC. 811(d)(2).— Decedent in 1929 through a nominee set up a spendthrift trust for her benefit for life, remainder on death to her then heirs at law. She retained a power to appoint by will which she relinquished in 1943 to avoid estate taxes. Held, the trust was revocable under Missouri law where it was created. Held, further, the power was relinquished in contemplation of death. Accordingly, the value of the corpus was includible to gross estate.
2. DEDUCTIONS FOR ADMINISTRATION EXPENSES AND CLAIMS— SEC. 812(b)(5).—Decedent's estate took a deduction of $15,000 for a dependent's allowance and later amended pleadings to claim $18,000, which was paid pursuant to order of local Probate Court. Respondent allowed $12,000. On facts, held, respondent's allowance approved. No more than $12,000 shown to have been ‘reasonably required’ for widower's support. Arthur M. Conley, Esq., and Frederick Pope, Jr., Esq., for the petitioners in Docket Nos. 51124 and 51125. Raymond A. Carter, Esq., and Sidney D. Rosoff, Esq., for the petitioner in Docket No. 51130.
James R. McGowan, Esq., for the respondent.
The Commissioner determined a deficiency of $254,759.76 in estate tax to be due from the estate of Mary Lois K. McIntosh. The same deficiency has been determined against the other petitioners as transferees.
The questions for decision are (1) whether the value of the corpus of a certain trust is includible in decedent's gross estate and (2) whether the full amount of $18,000 paid for the support of the decedent's husband during settlement of the estate was a proper deduction rather than the $12,000 allowed by the Commissioner.
In the event a deficiency is determined, transferee liability is conceded by petitioners in Docket Nos. 51125 and 51130.
FINDINGS OF FACT.
The stipulated facts are so found and the stipulation and exhibits thereto are included herein by reference.
Mary Lois K. McIntosh (hereafter sometimes called the decedent) died on May 21, 1949, aged 63 years, 9 months. Her executors filed an estate tax return on August 21, 1950, with the collector of internal revenue for the district of Connecticut.
In 1928 the decedent was sued in an alienation of affections suit and as a result she turned over to her then husband certain negotiable securities for management. She soon became apprehensive of her husband's management of the property and sought assistance in securing its return.
These troubles worried the decedent (who was then Mary Lois K. Perry) and for the purpose of protecting her properties against herself and generally against the misapplication of her funds she arranged for the creation of a trust on February 16, 1929. On that date she conveyed certain of her properties to Thomas J. Boland, a young lawyer in the office of Paul Bakewell, Jr. Boland, as nominal settlor, on the same day conveyed the properties to the St. Louis Union Trust Company and Bakewell, as trustees, under a written trust instrument. The use of Boland as nominal settlor was made in an attempt to avoid the rule of Missouri law that a settlor cannot create a spendthrift trust for his own benefit. The trust that was created and is here involved is a spendthrift trust.
The trust instrument provided, inter alia:
said trust shall continue for the sole use and benefit of Mary Lois K. Perry, now of New York City, New York, for and during her natural life, and during said trust the Trustee shall pay the taxes on said real estate and all proper charges and expenses in connection with the management and administration thereof. After the payment of such taxes and such proper charges and expenses, the Trustees hereunder shall pay the entire net income from the trust estate as hereby created in monthly installments of as nearly an equal amount as may be conveniently possible to the said Mary Lois K. Perry.
During the continuance of the trust hereby created, the Trustees shall have and hold the trust estate, and the beneficiary thereof, Mary Lois K. Perry, from time to time, shall enjoy the same subject to the following conditions, limitations, power and discretions in addition to those hereinbefore specified, to wit:
The Trustees shall receive, manage and control the trust estate and the property thereof as the Trustees may deem best for the interests of the beneficiary: * * *
The Trustees shall, from time to time, collect the rents and profits of and from the real estate hereby conveyed, and in the event of any sale thereof, and the reinvestment of proceeds of such sale, shall collect the rent, interest, dividends or profits from any such investments made by the Trustees and shall disburse the net income as herein authorized and directed.
In the event that there shall come into the hands of the Trustees hereunder any stock in any corporation upon which distribution or disbursements of stock may be made in the manner or form of stock dividends, then all of such stock dividends that may be so received by the Trustees hereunder shall, by the Trustees hereunder, be regarded as income, and not as corpus, and any and all stock dividends shall be distributed and delivered to the beneficiary hereunder as income.
The beneficiary hereunder, Mary Lois K. Perry, shall not have power to sell, assign, pledge, encumber or anticipate any interest created by this instrument, whether that interest be in the income or the principal of the trust estate; nor shall the interest therein of the said beneficiary be liable for her debts, nor subject to any suit at law or equity, it being the purpose of this instrument to provide that no right to alienate or create a charge upon the income from the trust estate hereby created shall exist or vest in the beneficiary hereunder, Mary Lois K. Perry, until the said income shall have been actually paid over to her.
If any suit be filed, the purpose of which is to reach any interest of Mary Lois K. Perry in the trust estate, or to make same liable for her debts to any manner before the income therefrom shall have been actually transferred or paid over to her, then, until any such suit shall have been finally determined, the right of the beneficiary hereunder, Mary Lois K. Perry, to any payment from the trust estate shall stand suspended and be unenforcible.
While any such suit is pending, however, the Trustees hereunder may, in their discretion, apply such portion of the income from the trust estate as they may see fit for the maintenance and support of the said Mary Lois K. Perry.
The right of Mary Lois K. Perry as beneficiary hereunder to receive the income from the trust estate created by this instrument shall be for her sole and separate use, and free and clear of and from any claim or right, interest or control by any husband of the said Mary Lois K. Perry.
On the death of the said Mary Lois K. Perry, the trust hereby created shall end, and the entire trust estate created by this instrument, together with any and all accumulated and undistributed income therefrom, shall go to such parties and under such terms and conditions as the said Mary Lois K. Perry may, by her last will, direct. In the event that the said Mary Lois K. Perry shall die intestate, or should fail to exercise said power by her last will, then, on her death, the entire trust estate hereby created, together with any and all accumulated and undistributed income therefrom, shall go and pass to the then heirs at law of the said Mary Lois K. Parry (sic), under the statutes of descent and distribution of the State of Missouri, free of any trust whatever, provided, however, that any portion or portions which shall pass to any heirs at law of the said Mary Lois K. Perry who are then minors, shall not pass to such minors directly, but the portions of any such minor heirs at law shall continue with the said Trustees in trust for them respectively until they respectively become of legal age, then, to be transferred and paid to them free of trust. During the continuance of any such trust for minors the Trustees shall pay or apply the net income from such trust estate for the support, education and maintenance of such minor or minors.
During the continuance of any such trust for minors, the Trustees shall have the same duties and the same powers as are given them by this instrument with regard the the trust hereby created for the life of Mary Lois K. Perry.
The trust instrument also provided that on the death, resignation or incapacity of Paul Bakewell as trustee, ‘then the beneficiary hereunder, Mary Lois K. Perry, shall have the right and power to nominate and appoint a successor individual Trustee’; and further provided that ‘at any time or times during the continuance of the trust as hereby created, the beneficiary, Mary Lois K. Perry, in her sole discretion, shall have the right to appoint a successor or successors from time to time to the St. Louis Union Trust Company, ‘ with the limitation that such successor should be a corporate fiduciary located in St. Louis.
On May 27, 1929, Paul Bakewell addressed to the decedent a written resignation as co-trustee, ‘such resignation to be effective at your pleasure, whenever accepted by you.’
The decedent divorced Eugene Perry in 1931 and married Russell L. McIntosh later in that year.
On May 14, 1934, she accepted the written resignation of Paul Bakewell as co-trustee, which written resignation had been in her possession since May 27, 1929, and on the following day she appointed her husband, Russell L. McIntosh, as successor trustee.
On June 24, 1941, the St. Louis Trust Company wrote to decedent in part as follows:
Under the terms of your trust fund with us you are not able to make any disposition of the income other than to receive it yourself. You cannot make a valid assignment of this income to your son, or in fact to any one, as it appears from the terms of this trust that the intention was to be certain that you personally receive the income produced by this trust fund. You do have the right to dispose of this fund in your will but from a tax standpoint it would seem desirable, if it is your desire that your son have this property, that you do not exercise this right.
You should, of course, have a will disposing of the property that you have other than that which is contained in this trust estate. The federal tax authorities under present practice tax the exercise of a power of disposition the same as if you owned the property if the power of disposition is exercised. If this power to dispose of the trust property is not exercised and this property is allowed to go to your son under the trust agreement, there would be a definite tax advantage. This does not mean that you shouldn't make a will. We strongly recommend that you have your attorney draw your will and advise you on these matters as we cannot undertake to give legal advice, and we would suggest that in the drafting of your will the tax situation be given full consideration.
Decedent had executed a will on May 10, 1935, with a codicil dated April 8, 1936, in which she exercised the power of appointment contained in the trust instrument. As a result of the suggestion made in the letter of June 24, 1941, an attorney was consulted and a new will was executed on July 14, 1941, in which the decedent specifically refrained from exercising the power.
Later, on May 27, 1943, in accordance with its policy of reviewing all trust instruments providing for a power of appointment, Trust Company advised the decedent by latter that her powers under the trust instrument should be reviewed in the light of changes in the tax laws contained in the 1942 Revenue Act. Following this advice an attorney was employed. He advised that the property in the trust would be taxable as part of the decedent's estate unless the power of appointment was released by her before March 1, 1944. Accordingly, the decedent executed the following ‘Release of Power’ on November 4, 1943:
WHEREAS, the undersigned is desirous of releasing and relinquishing the said power of appointment forever to, and in favor of, the persons who may be or become entitled to receive the property heretofore subject to the said power of appointment in the event that such power be not exercised.
NOW, THEREFORE, the undersigned does hereby, irrevocably and forever, release and relinquish all power which she now has, or at any time hereafter may have had, to direct, nominate, or appoint the parties to whom the Trust Estate created by the Deed of Trust dated February 16, 1929, made by Thomas J.Boland, and any and all accumulated and undistributed income therefrom, shall go upon the termination of the said Trust, or to impose any terms and conditions with respect to the final distribution of said Trust Estate, and
The undersigned does hereby covenant with Russell L. McIntosh and St. Louis Union Trust Company as Trustees of said Trust, for and in behalf of the heirs at law of the undersigned, under the statutes of descent and distribution of the State of Missouri, and with Eugene Kilpatrick Perry, the sole apparent heir at law of the undersigned under such statutes, that there is not now in existence any will or other testamentary document executed by her which purports to exercise the aforesaid power of appointment, and that she will not hereafter execute any such will or testamentary document.
The decedent's purpose in releasing the power of appointment was to save estate taxes. At the time she executed the release of power of appointment decedent was in good physical condition for a woman of her age, and she had no particular concern about dying.
By order of the Court of Probate, District of Norwalk, Connecticut, dated August 16, 1949, an amount of $1,000 a month was allowed for the support of decedent's husband, Russell L. McIntosh, for a period of 12 months from the date of decedent's death. By order of the same court, dated May 10, 1950, these support payments were continued for 6 more months. A total of $18,000 was thus received by Russell L. McIntosh and deposited to his account.
In her last will, dated December 30, 1948, decedent provided that $10,000 should be paid to her husband immediately after her death. This amount was paid on July 11, 1949.
By her will decedent placed her residuary estate in trust and directed that her husband be paid not less than $12,000 annually, in payments of $1,000 a month, from the income of the trust. The first payment to decedent's husband under this provision was made on November 10, 1950, in the amount of $4,000, representing monthly payments from June through September 1950. After November 1950, payments of $1,000 a month under the foregoing testamentary trust were made to decedent's husband.
OPINION.
TIETJENS, Judge:
Respondent seeks to include in the estate of Mary Lois K. McIntosh the value of the property transferred in trust in 1929, on the ground that decedent was in reality the settlor of the trust and its only beneficiary, and as such she had the power to revoke the trust. Sec. 811(d)(2), I.R.C.1939.
Another ground for inclusion asserted by respondent is that decedent's relinquishment of the power given her in the deed of trust, of naming in her will the parties to receive the trust property on her death (power of appointment), was in contemplation of death. Sec. 811(d)(2). In opposition petitioner contends that (a) decedent was not the settlor of record of the trust and therefore under Missouri law could not exercise any of the rights of a settlor, and (b) even if petitioner were to be regarded as the settlor, the trust property is not includible in her estate as a revocable transfer under section 811(d), citing Helvering v. Helmholz, 296 U.S. 93 (1935).
SEC.811. GROSS ESTATE.The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States—(d) REVOCABLE TRANSFERS.—(2) TRANSFERS ON OR PRIOR TO JUNE 22, 1936.— To the extend of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money's worth. Except in the case of transfers made after June 22, 1936, no interest of the decedent of which he has made a transfer shall be included in the gross estate under paragraph (1) unless it is includible under this paragraph;
There is no question that the property placed in trust belonged solely to the decedent, and the parties have stipulated that Boland was a nominal settlor. The purpose of using Boland was to avoid the prohibition under the law of Missouri against a settlor's establishing a spendthrift trust for his own benefit. Under these circumstances there is little room for seriously contesting that decedent was the real settlor of the trust set up in 1929 (1 Scott, The Law of Trusts (1939), sec. 156.3; Griswold, Spendthrift Trusts (2d ed., 1947), sec. 487), and that for purposes of applying a Federal taxing statute the transfer in trust should be considered as having been made by decedent. Newberry's Estate v. Commissioner, (C.A. 3, 1953) 201 F.2d 874, 876, 877; Estate of Grace D. Sinclair, 13 T.C. 742 (1949).
Whether the trust was revocable depends on the law of the place of its creation— Missouri. Blair v. Commissioner, 300 U.S. 5 (1937). The revocability of a spendthrift trust of which the settlor was also the beneficiary was in question in Stephens v. Moore, 298 Mo. 215 (1923), 249 S.W. 601. In that case the plaintiff's mother being concerned lest plaintiff mismanage his inheritance arranged for his setting up a spendthrift trust upon reaching majority. Plaintiff transferred certain real and personal property to a trustee, who was to hold the property for the benefit of the settlor and was to have complete control and management of it. The net proceeds from the trust property were to be paid over to the settlor annually. The deed of trust contained no express power of revocation. The disposition of the trust property after the settlor's death was provided in the following terms:
Eleventh. Upon my death this trust shall terminate and the trust shall pass to and vest in my legal heirs, or as may be directed in my will.
About 2 1/2 years after the creation of the trust the settlor brought an action in equity to revoke the trust and to compel a reconveyance of the trust property. The Supreme Court of Missouri in holding the trust revocable by the settlor reaffirmed its adherence to the principle that ‘a completely executed trust, even though it be a voluntary one, with reservation of power of revocation, can only be revoked by consent of all the beneficiaries.’ In ascertaining who the beneficiaries of the trust were the court sought to determine whether the settlor had disposed of the entire fee in the trust property by disposing of the interest remaining after his death. It held that the trustee did not take an estate of inheritance under the deed of trust, since such an estate was not necessary to enable him to carry out his duties which consisted of managing the trust property; and no remainder interest, vested or contingent, was created in the settlor's heirs by the provision of the trust deed relating to the disposition of the trust property upon the settlor's death. On the latter point the court said (p.604):
It is the generally accepted rule that, where there is a grant to one for life, with remainder to the heirs of the grantor, there is in fact no remainder; for the limitation, though denominated a remainder, continues in the grantor as his old reversion, and does not devolve upon his heirs as purchasers, as it would if it were a remainder, but as his heirs. 23 R.C.L. 516; Akers v. Clark, supra. (186 Ill. 136, 56 N.E. 296.)
Considering the whole deed of trust the court would find no indication of an intention on the settlor's part of making a disposition of his estate to take effect at his death. It therefore concluded that the settlor was the only beneficiary of the trust, and that consequently the trust was revocable. Further, the court felt that the nature of the trust was such, it granted the trustee the powers only of an agent, and as the grant was not coupled with an interest or supported by independent consideration, it was revocable at the grantor's pleasure.
Stephens v. Moore was subsequently cited with approval for the principle that a trust may be revoked with the consent of all the beneficiaries in Ketcham v. Miller, 37 S.W.2d 635, 640 (1931), and in Krause v. Jeannette Inv. Co., 333 Mo. 509 (1933), 62 S.W.2d 890, 895. See Generally 3 Scott, The Law of Trusts (1939), secs. 338, 339; 2 Restatement of the Law of Trusts (1935), sec. 337. As to the nature of the interests created by language like that in paragraph eleventh of the deed of trust in Stephens v. Moore, the law of Missouri, so far as we can ascertain, continues to be that in the absence of a showing of a contrary intention no interest is created in the grantor's heirs. Davidson v. Davidson, 350 Mo. 639 (1943), 167 S.W.2d 641; and note: ‘The Doctrine Of Worthier Title In Missouri,‘ 1952 Washington University Law Quarterly 117. See generally 1 Scott, The Law of Trusts (1939), sec. 127.1; I American Law of Property (1952), sec. 4.19.
Insofar as the revocability of the trust in question here, we see no material difference between this case and Stephens v. Moore, supra. Here, as we see it, the trustees took no estate of inheritance; their interest as trustees was to last only during the life of the settlor, except as to any portion of the trust property going to minor heirs of the settlor. This they were to continue to administer as trustees during the minority of such heirs. Provision for the disposition of the trust property upon the settlor's death was made in the following language:
On the death of said Mary Lois K. Perry, the trust hereby created shall end, and the entire trust estate created by this instrument, together with any and all accumulated and undistributed income therefrom, shall go to such parties and under such terms and conditions as the said Mary Lois K. Perry may, by her last will, direct. In the event that the said Mary Lois K. Perry shall die intestate, or should fail to exercise said power by her last will, then, on her death, the entire trust estate hereby created, together with any and all accumulated and undistributed income therefrom, shall go and pass to the then heirs at law of the said Mary Lois K. Parry (sic), under the statutes of descent and distribution of the State of Missouri, free of any trust, whatever, * * *
The quoted language of itself created no interest in the trust property in the settlor's heirs (Stevens v. Moore, supra); and there does not otherwise appear an intention on the decedent's part to provide her heirs with such an interest at the time the trust was created. It is apparent from the circumstances of the creation of the trust that her primary purpose was to put certain of her property out of her power to deal with it in order to protect it from claims of creditors. While this purpose is not inconsistent with an intention to provide her heirs with an interest in the trust property, the only indication we have of decedent's intention, at the time the trust was created, as to the disposition of the trust property upon her death is the language used in the deed of trust; and this, as we have already pointed out, did not have the effect under Missouri law of creating an interest in her heirs.
We therefore hold that decedent was the only beneficiary under the trust created in effect by her in 1929, and consequently she had the power to revoke the trust under Missouri law. The value of the trust property is therefore includible in her estate under section 811(d)(2). Vaccaro v. United States, (C.A. 5, 1945) 149 F.2d 1914; Howard v. United States, (C.A. 5, 1942) 125 F.2d 986; Estate of Felicie Gumbel Keiffer, 44 B.T.A. 1265 (1941), petition for review dismissed on motion, C.A. 5, October 14, 1942.
Petitioners point to the fact that the deed of trust made provision for keeping in trust any portion of the trust property passing to decedent's minor heirs during their minority, as an indication of an intention on decedent's part to create an interest in the trust property in her son at the time the trust was created. We fail to see in this provision an indication of the intention sought to be derived from it by petitioners. To us it indicates no more than that petitioner wanted to be certain that if any of the trust property should go to a minor heir, it would be properly cared for during minority. This is not to say that at the time the trust was created decedent wanted to put out of her power of disposition the interest in the trust property remaining after her death by then creating an interest in her son or heirs.
Another circumstance pointed to by petitioner as indicated of decedent's intention to provide her heirs with an interest in the trust property is her relinquishment of her power of appointment in 1943. This argument, it seems to us, avails petitioners nothing. The relinquishment was made in the hope of preventing the value of the trust property from being included in decedent's estate at death and thereby to save estate taxes. Even if we should conclude that at this time, in 1943, decedent intended that she should not during her lifetime have a power of disposition of the interest in the trust property remaining after her death, we should also have to conclude that in giving up her power of appointment decedent also gave up the power of revocation she had prior to that time, and that this was in contemplation of death within the meaning of section 811(d)(2), since, as we shall later point out, under our decisions a transfer motivated solely by a desire to avoid estate taxes is in contemplation of death.
Finally, petitioners contend that the Supreme Court's ruling in Helvering v. Helmholz, 296 U.S. 93 (1935), requires the conclusion here that the trust was not revocable by petitioners. In that case the trust instrument provided that the trust could be terminated upon delivery to the trustee of a written declaration, signed by all of the then beneficiaries, declaring the trust to an end. The Commissioner contended that this provision gave the decedent, who was one of the settlors of the trust and an income beneficiary of it during her life, a power to revoke or amend the trust which she could exercise with a power to revoke or amend the trust which she could exercise with others within the meaning of section 302(d) of the Revenue Act of 1926. The Supreme Court denied the Commissioner's contention. It held that his argument overlooks the essential difference between a power to revoke, alter or amend, and a condition which the law imposes. The general rule is that all parties in interest may terminate the trust.
The clause in question added nothing to the rights which the law conferred. Congress cannot tax as a transfer intended to take effect in possession or enjoyment at the death of the settlor a trust created in a state whose law permits all the beneficiaries to terminate the trust.
Restatement of the Law of Trusts, Secs. 337, 338. We are referred to no authority to the contrary in Wisconsin, the place of the transaction.
Applying Helvering v. Helmholz here petitioners argue that if we determine the trust was revocable by decedent under Missouri law, such a power of revocation is one conferred by law and hence not one that requires inclusion of the value of the trust property in decedent's estate. We think this contention is best answered by the following quotation from Commissioner v. Allen, (C.A. 3, 1939)b 108 F.2d 961, 965, certiorari denied 309 U.S. 680 (1940), explaining the meaning of the above holding in Helvering v. Helmholz, supra.
The respondent misinterprets the meaning of the Helmholz case where the court said that the Government's ‘argument overlooks the essential difference between a power to revoke, alter, or amend, and a condition which the law imposes'. (296 U.S. 93, 56 S.Ct. 70, 80 L.Ed 76.) What the court was there pointing out was that the power in the beneficiaries, as such, to revoke a trust was a legal right
which they also enjoyed without any grant in the premises from the settlor. The power, therefore, could not be one reserved to the settlor, as such, within the contemplation of Sec. 302(d) of the Estate Tax Act of 1926. Otherwise, Congress would be attempting to tax, as a part of a deceased settlor's estate, in States where beneficiaries have the legal right to terminate a trust, property with which the settlor had irrevocably parted in his lifetime, so far as any power, on his part as settlor, to terminate the trust was concerned. This, of course, Congress could not do without violating the Fifth Amendment of the Constitution, U.S.C.A; and, an intent so to do was not to be imputed to Congress by adopting the construction of Sec. 302(d) of the Estate Tax Act of 1926 for which the Government was contending in the Helmholz case. The things of importance in the Helmholz case was that the power of revocation there rested with the beneficiaries and not with the settlor as such. The ruling in the Poor case ( White v. Poor, 296 U.S. 98 (1935)) so implies. In the latter case, the trustees did not have a power to revoke conferred by law as did the beneficiaries in the Helmholz case. The trustees' power to revoke in the Poor case came from the trust indenture alone. Yet, the result in the Poor case was the same as in the Helmholz case. Neither the Helmholz case nor the Poor case distinguishes between a settlor's power to revoke when imposed by law and a settlor's like power when reserved by his trust indenture.
Restatement of the Law of Trusts, Secs. 337, 338.
An additional reason asserted by respondent for including the value of the trust property in decedent's estate is that decedent's release in 1943 of the power to name the ultimate beneficiaries of the trust property was in contemplation of death within the meaning of section 811(d)(2). We have found as a fact that decedent's dominant motive in releasing her power of appointment was to save estate taxes. The circumstances of the release amply support this conclusion. By letter of May 27, 1943, decedent was advised by the St. Louis Union Trust Company, one of the trustees under the trust, that because of recent changes in the Federal tax law her possession of a power of appointment could cause the value of the trust property to be included in her estate for estate tax purposes. Subsequently, by letter of June 23, 1943, decedent's husband was advised by a lawyer that decedent would have to give up the power of appointment to keep the value of the trust property from being included in her estate under the amendments to section 811(f) of the Internal Revenue Code of 1939 made by the Revenue Act of 1942, and acting on this advice she executed the release dated November 4, 1943.
We have previously held that a transfer motivated solely by a desire to avoid estate taxes was in contemplation of death. Estate of Frank A. Vanderlip, 3 T.C. 358 (1944); affd. (C.A.2, 1946) 155 F.2d 152, certiorari denied 329 U.S. 728 (1946). See also Slifka v. Johnson, (C.A. 2, 1947) 161 F.2d 467, certiorari denied 332 U.S. 758 (1947); Commonwealth Trust Co. of Pittsburgh v. Driscoll, (W.D., Pa., 1943) 50 F.Supp. 949, affirmed per curiam (C.A. 3, 1943) 137 F.2d 653, certiorari denied 321 U.S. 764(1944); First Trust & Deposit Co. v. Shaughnessy, (C.A. 2, 1943) 134 F.2d 940, certiorari denied 320 U.S. 744 (1943); Farmers' Loan & Trust Co. v. Bowers, (C.A. 2, 1938) 98 F.2d 794, certiorari denied 306 U.S. 648 (1938). The foregoing cases require the same result here. The fact that decedent thought her relinquishment of the power would result in nontaxability does not, of course, alter this result.
Nor does the fact found by us that decedent in 1943 was in good health and not particularly concerned with the prospect of death alter this result. The test is to be found in her motive, which must be of the sort that leads to testamentary disposition. United States v. Wells, 283 U.S. 102, 117 (1931).
Section 403(d)(3) of the Revenue Act of 1942 (56 Stat. 944) and section 2(a) of the ‘Powers of Appointment Act of 1951’ (65 Stat. 91) permit the tax-free release only of donated powers of appointment, not of reserved powers. See Conf. Rept. No. 2586, 77th Cong., 2d Sess., p. 71 (Amendment No. 418); H. Rept. No. 2333, 77th Cong., 2d Sess., p. 57 (defining a power of appointment); S. Rept. No. 382, 82d Cong., 1st Sess., p. 6 (specifically stating that the amendments made to section 811(f) by the ‘Powers of Appointment Act of 1951’ do not limit the scope of sections 811(a),(c), and (d)).
A settlor's reservation of a power to change the ultimate beneficiaries of trust property is sufficient to cause the value of the property to be included in the settlor's estate upon death as a power to alter or amend the transfer in trust, under section 811(d)(2). Bank of New York & Trust Co., Administrator (Estate of A. B. Hunt), 20 B.T.A. 677 (1930); Laird v. Commissioner, 29 B.T.A. 196 (1933), affirmed on other grounds (C.A. 3, 1935) 85 F.2d 598, modified and remanded on other grounds on rehearing 85 F.2d 600. Cf. Porter v. Commissioner, 288 U.S. 436 (1936). (The foregoing cases involve section 302(d) of the Revenue Acts either of 1924 or 1926, whose wording, insofar as material here, is the same as section 811(d)(2), I.R.C. 1939.) Where the settlor relinquishes this power in contemplation of death, section 811(d)(2) specifically requires the inclusion of the value of the trust property in his estate.
Petitioners in attempting to fit their case into the Supreme Court's holding in Allen v. Trust Co. of Georgia, 326 U.S. 630 (1946), contend that decedent's purposes in releasing her power of appointment in 1943 was to accomplish what she thought she had done in making a new will in 1941 (in which she specifically refrained from exercising her power of appointment), that is, to make certain that her son receive the trust assets free of tax. We think, the analogy is misplaced. Allen v. Trust Co. of Georgia, supra, involved the creation of a trust by decedent in 1925 to provide for his children, both of whom were then in need of funds. His purpose in placing the money in trust was to protect his children against any misadventures that might result in the loss of the money, since prior gifts had been lost in unsuccessful business ventures. Decedent retained a power to amend the trust, which he released in 1937 upon being advised that his retention of the power of amendment would cause the value of the trust property to be included in his estate. The Court held that decedent's release in 1937 was not in contemplation of death because in making the release he was merely doing what he had intended to do in 1925, which was ‘to make complete and absolute gifts to his children, freed of all claims, including taxes.’ (p.636.) The cases are analogous insofar as the decedent here was attempting to do in 1943 what she intended to do in 1941, but here intention in the latter year was simply to save estate taxes. The record does not support a finding that decedent in 1941 intended to make a complete and absolute gift to her son.
The remaining question relates to the respondent's disallowance of part of the amount claimed for support of a dependent (decedent's husband) under section 812(b)(5) of the Internal Revenue Code of 1939. On the estate tax return $15,000 was claimed by decedent's estate, and this amount was increased by amendment to the petition to $18,000. Respondent in his notice of deficiency allowed $12,000. Section 812(b)(5)
provides that for purposes of the estate tax the value of the net estate shall be determined by deducting from the value of the gross estate amounts that are ‘reasonably required and actually expended for the support during the settlement of the estate of those dependent upon the decedent, as are allowed by the jurisdiction * * * under which the estate is being administered.’
Section 812(b)(5) was repealed by section 502(c) of the Revenue Act of 1950 (64 Stat. 962). The change was effective with respect to estates of decedents dying after September 23, 1950, the date of the enactment of the Revenue Act of 1950.
In our view petitioners have failed to show that under the circumstances here an amount in excess of $12,000 was reasonably necessary for the support of decedent's husband during the settlement of the estate. (Respondent does not question that decedent's husband was dependent on her for support, that the amount of $18,000 was actually expended, and that such payment was allowed under the laws of Connecticut.) As set forth in our Findings of Fact decedent's husband received pursuant to orders of a probate court of Connecticut payments of $1,000 a month as a support allowance for the period from the date of decedent's death, May 1949, until November 1950, a total of $18,000. In July 1949, 2 months after his wife's death, decedent's husband was paid a bequest of $10,000 as provided for in decedent's will. In addition, in November 1950 he received $4,000, representing payments of $1,000 a month from June through September 1950, under the residuary trust created by decedent's will. While it is apparent from the whole record here that decedent was well-to-do and that she and her husband enjoyed a high standard of living, petitioners have not demonstrated why, in light of the circumstances set out above, the additional $6,000 contended for was reasonably required for decedent's husband's support. Cf. Mary M. Buck et al., Executors, 25 B.T.A. 780 (1932), affirmed on this point sub nom. Buck v. Helvering, (C.A. 9, 1934) 73 F.2d 760; Estate of Charles C. Hanch, 19 T.C. 65 (1952). The fact that the support payments amounting to $18,000 were authorized by the Connecticut Probate Court is not binding on us in our determination of whether such amounts were ‘reasonably required’ within the meaning of a Federal taxing statute. Buck v. Helvering, supra; Estate of Charles C. Hanch, supra.
Decisions will be entered under Rule 50.