Opinion
Docket Nos. 111730-111744 111777 111778 111779 111780.
1944-02-7
WILLIAM HOWARD DORISS, PETITIONER, ET AL.,1 v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
James S. Y. Ivins, Esq., for the petitioners. James C. Maddox, Esq., for the respondent.
The petitioners are transferees of the estate of X, deceased. The due date for the filing of the estate tax return was April 14, 1938. On the morning of that date an estate tax return signed by one of the two executors of the estate was mailed from New York City to Albany and addressed to the collector of internal revenue at the latter city, whose offices were in the post office building there. He maintained a post office box and sent for his mail several times a day, usually not after 4:30 p.m. His office hours were usually from 9 a.m. to 4:30 p.m. The return reached the Albany post office at 5 p.m. on April 14 and was placed in the collector's post office box or in an adjacent hamper or on a cart maintained by the collector. It was not called for by the collector until the following morning and was stamped ‘received‘ as of April 15. In this return the executor of the estate elected to have the gross estate valued as of a date one year after decedent's death. Held, the return in question was a return by ‘the executor‘ of the estate and was timely filed, and the option provided by statute was validly exercised. James S. Y. Ivins, Esq., for the petitioners. James C. Maddox, Esq., for the respondent.
In the instant cases respondent has determined that petitioners are liable as transferees for a deficiency in estate taxes determined against the estate of Louise H. Parker, of which estate petitioners are distributees. In the petitions filed herein the petitioners allege that there is no deficiency of estate tax due from the transferor estate, and also allege that there has been an overpayment of estate tax by the transferor. On brief petitioners concede that an overpayment of tax by the transferor can not be determined in transferee proceedings. The remaining question, whether there is a deficiency in estate taxes, depends for its resolution upon whether the gross estate of the decedent is to be valued as of the date of her death or as of one year after her death. The decedent's estate purported to elect to have the value of its property determined as of the date one year after decedent's death, pursuant to section 302(j), Revenue Act of 1926, as added by section 202(a), Revenue Act of 1935. The respondent, however, has determined and now contends that such election is not available to the estate since the estate tax return under which the election was claimed was not filed within 15 months from the decedent's death. The respondent also contends that the return when filed was invalid, since it was signed by only one of the two executors.
FINDINGS OF FACT.
The parties have stipulated, and we accordingly find, the following facts:
The Federal estate tax return for the estate of Louise H. Parker, deceased, was filed with the collector of internal revenue of the fourteenth district of New York at Albany, New York.
On the basis of the Federal estate tax return filed for the estate of Louise H. Parker, deceased, there was assessed the amount of $24,119.07 on the July 1938 list; on July 16, 1938, the sum of $24,119.07 was paid.
There has been no assessment against and no payment on behalf of the estate of Louise H. Parker, deceased, for Federal estate taxes in addition to the amount of $24,119.07 assessed and paid in July of 1938.
During the period commencing March 8, 1937, and ending December 31, 1938, Roswell C. Parker and Douglas B. Parker, executors of the estate of Louise H. Parker, deceased, transferred and paid over to the heirs, legatees, and distributees of the estate and to the trustees of a trust created under decedent's will, all of the property of the estate of Louise H. Parker, deceased, such transfer and payment of all of the property of the estate of Louise H. Parker, deceased, left the estate without any assets, and since such transfer and payment the estate has continued to be without any assets.
The fair market value on January 14, 1937 (the date of decedent's death), of the property included in the gross estate of the estate of Louise H. Parker, deceased, as determined by the respondent and shown in the notices of transferee liability, is $333,018.36. The copy of the notices of deficiency (transferee liability) attached to the petition in each of the above entitled proceedings is incorrect in showing in page 2 of the statement thereof that the gross estate for basic tax returned is the amount of $25,573.55 and as determined is the amount of $33,018.36; the notice of deficiency (transferee liability) sent to each of the above named petitioners showed the gross estate for basic tax returned in the amount of $257,573.55 and as determined in the amount of $333,018.36.
The fair market value on January 14, 1938, of the property included in the gross estate of the estate of Louise H. Parker, deceased, except as to the part of such property which was distributed by the executors, or sold, exchanged, or otherwise disposed of, which is included in the total value at its value as of the date of such distribution, sale, exchange, or other disposition in lieu of the fair market value on January 14, 1938, is the amount of $244,242.03.
From the oral and documentary evidence adduced at the hearing herein, we find the following facts:
Petitioners are the beneficiaries of the estate of Louis H. Parker, and transferees of the net assets of that estate. Louise H. Parker died a resident of Westchester County, New York, on January 14, 1937.
A Federal estate tax return was prepared for the signature of the executors of decedent's estate in the latter part of March or early April of 1938. On April 5, 1938, the attorneys for the executors wrote a letter to the Bureau in Washington stating that the return and tax was due April 14 and referring to an affidavit for the details of a basis of a request for an extension of time for payment of the tax under section 305 as amended. The affidavit of one of the executors stated that the return had been prepared showing a tax of $21,896.40 under the option allowing values as of the date one year after the decedent's death.
Under date of April 14, 1938, the attorneys wrote a letter to the collector in which they stated that they were enclosing the estate tax return for filing with the collector. The letter states that payment did not accompany the return because application for the extension of time to pay had been made to the Commissioner.
An attorney for the estate made some changes in the return prepared in April, but had the return in final form on April 13, 1938. The executors were not in town (New York City) at that time to sign it and one of the executors, Douglas Parker, was not in town on April 14, 1938. Both of the executors lived outside New York City, one in New Rochelle and the other in Scarsdale, New York. One of the attorney's associates told him that Parker was not available, but that he should make all efforts to get the signature of the other executor, Roswell Parker, when he came into town on the 14th. The attorney secured the signature of Parker under oath on April 14 at about 9 or 9:15 a.m., when he visited his office at 342 Madison Avenue. The letter of April 14 and the return were deposited in the special chute for mail trains at the Grand Central Terminal between 10 and 10:15 a.m. of April 14, 1938.
Mail placed in the mail chute in the Grand Central Terminal between 10 and 10:15 a.m., addressed to Albany, New York, would in the normal course be placed in a regular direct package for the Albany post office, that package would be placed in a mail bag containing Albany mail and mail for points other than Albany, and the bag would be delivered to the railway mail car on train 39. Train 39 on April 14, 1938, left New York City at 1:31 p.m. and arrived in Albany at 4:13 p.m., on time.
Mail arriving on train 39 usually is received at the Albany post office between 4:30 and 5 p.m., closer to 5 o'clock as a rule, and would be placed in the post office boxes immediately thereafter. On April 14, 1938, it was received at 5 p.m.
The collector of internal revenue rented and maintained a regular post office box in April of 1938. The post office department delivered no mail to the collector's office rooms except special delivery letters. The offices of the collector are in the Albany post office building.
The collector's post office box was an ordinary post office lock box and the opening for the deposit of mail from the distribution pigeon holes was too small for the insertion of packages of mail. Consequently, the bundles of mail were placed in a hand truck provided by the collector. The hand truck was brought down to the post office with the last of the collector's outgoing mail and it remained in the post office until the following morning, when it was drawn back to the collector's office with the collector's incoming mail. During the day the truck was brought to the post office with the collector's outgoing mail and was immediately returned to the collector's office with the collector's incoming mail. During the day the collector's mail was either left on a table or placed in hampers. The truck during the night substituted for the post office hamper used during the day.
Except in rush periods, it was not the practice of the collector to pick up his mail from the post office after 2:30 p.m., though on March 15 the collector picks up mail and stamps it received up to midnight.
The collector's regular office hours in April 1938 were from 9 a.m. to 4:30 p.m. Except on March 15, it was not customary for anyone to stay in the office after 4:30 p.m.
The letter enclosing the estate tax return here in question was placed upon the collector's truck in the post office in Albany at approximately 5 p.m., April 14, 1938, but was not called for and did not reach the collector's office upstairs until the next day.
The estate tax return was stamped ‘received‘ in the collector's office on April 15, 1938. On the same day the collector wrote a letter to the attorneys for the estate reading as follows:
Receipt is acknowledged of your letter dated April 14, 1938, enclosing Federal estate tax return on Form 706, in duplicate, for the above-named estate.
It is noted that the executor has elected to take the optional valuation; however, the return has not been completed in accordance with the instructions printed on the return blank under the heading ‘Optional Valuation‘. The return would not be accepted by the Bureau unless it is properly completed. There is no explanation as to the date of sale, exchange, distribution, or other disposition of the assets listed. You will note from the example on the reverse side of Sheet V. that you should give the value as of the date of death as well as the optional value. All income accrued or collected from the date of death up to the valuation date should also be included. Your attention is invited to the last paragraph of Article 11 of the enclosed Regulations #80. The return, in duplicate, is therefore herewith returned, for proper completion.
Your attention is also invited to instructions on the reverse side of Sheet I from which you will note that the return should be executed by both executors. One certified copy and one plain copy of the Will should also be furnished.
Kindly give this matter your prompt attention. This letter was received by the attorneys for the estate on April 16, 1938. The estate tax return accompanied this letter.
Counsel for the estate compiled the information indicated in the collector's letter, quoted above, amending some of the schedules and using some of the original schedules of the return, and the return, thus compiled, with the original first sheet and a new verification sheet was verified anew by both executors on July 14, 1938, and was mailed on July 15, 1938, with a covering letter, to the collector in Albany, which letter reads in part as follows:
Enclosed herewith is the Federal Estate Tax return on Form 706 in duplicate for the above named estate.
This return in duplicate was filed with your office on April 15th, 1938 and was subsequently returned to us with your letter of April 15th. We filed the return on April 15th with valuations under the option but did not include the income received on the principal in the estate for the year immediately subsequent to the date of death. The law makes no provision for the reporting of such income but your regulations provide for including it in the return filed with valuations under the option. Your letter of April 15th, informed us as follows:
‘All income accrued or collected from the date of death up to the valuation date should also be included9’
The return in duplicate enclosed herewith includes the income as above mentioned but the same is reported under protest and the payment of the tax in the sum of $24,119.07, check for which is enclosed, is paid under protest as follows:
+-----------------------------------------------------------------------------+ ¦The Tax as reported under the option on both principal and income ¦$24,119.07¦ ¦is ¦ ¦ +------------------------------------------------------------------+----------¦ ¦The tax on the principal alone under the option without income is ¦21,984.06 ¦ +------------------------------------------------------------------+----------¦ ¦ ¦$2,135.01 ¦ +-----------------------------------------------------------------------------+
The above mentioned sum of $2,135.01 (which is included in the enclosed check in payment, under protest, of the tax) is the tax on the said income and the total tax herein is paid under protest as to said amount of $2,135.01.
On July 18, 1938, the collector wrote the attorneys for the estate tax as follows:
Receipt is acknowledged of your letter dated July 15, 1938, enclosing Federal estate tax return on Form 706, in duplicate, for the above-named estate, together with check in the sum of $24,119.07 covering the tax indicated by the return.
It is noted from your letter that the Bureau has not yet taken action on the application filed by you for an extension of time within which to make payment of the returned tax. Should the Bureau fail to grant the extension requested, interest would be due in the amount of $368.72.
Further correspondence between the attorneys for the estate and the Deputy Commissioner in Washington resulted in rejection of the request for extension of time to pay the estate tax and the collector exacted interest covering the period from April 14 to July 16, 1948.
Somewhat over a year later, on September 8, 1939, the attorneys for the estate wrote to the Deputy Commissioner in Washington as follows:
Re Estate of Louise H. Parker, dec'd.
Will you please send to us the final determination of the Commissioner in the above estate tax proceedings. It is necessary that we file such final determination with the New York Estate Tax Department in order to receive back certain moneys on deposit with said department.
The entire estate is closed except for this deposit and we are indeed anxious to close our files.
And on September 19, 1939, the Acting Deputy Commissioner wrote the executors, in care of their attorneys, making reference to the letter of September 8, and saying:
In accordance with the attorney's request there is enclosed for submission to the New York State taxing authorities a summary showing the values of the several schedules as returned by the estate on Form 706 and determined by the Bureau for Federal estate tax.
The enclosure referred to showed the total gross estate as returned to be $257,573.55 and the total gross estate according to respondent's determination to be $257,266.20.
On April 23, 1941, the attorneys for the estate wrote to the Bureau of Internal Revenue in Washington, calling attention to the decision, on March 3, 1941, by the Supreme Court of Maass v. Higgins, 312 U.S. 443, in which it held that, where an executor avails himself of the option to value a decedent's gross estate as of one year after the date of death, income received during the year is not required to be added to the value of the gross estate. Accordingly, the executors requested a refund of $2,135.01. Receipt of this letter was acknowledged by the Deputy Commissioner under date of April 26, 1941, and the attorneys were advised by the Deputy Commissioner, under date of May 2, 1941, that the letter would be treated as an informal claim for refund.
On May 12, 1941, the Deputy Commissioner wrote the attorneys, suggesting that a formal claim for refund be filed, and this suggestion was repeated on July 9, 1941. The formal claim was filed On september 18, 1941.
On March 4, 1942, the Deputy Commissioner wrote to the executors in reference to the claim for refund as follows:
Reference is made to the informal claim filed on April 24, 1941, as confirmed by a formal claim on Form 843 filed on September 18, 1941, for the refund of $2,135.01 representing a portion of the Federal estate tax paid on behalf of the above named estate.
The claim seeks the elimination from the gross estate of certain interim income in view of the rule laid down in Maass v. Higgins, 61 Supreme Court 631.
The record discloses that this decedent died on January 14, 1937. Accordingly, pursuant to the provisions of the statute the return of her estate on Form 706 was to be filed not later than April 14, 1938. April 14, 1938, came on Thursday and was not a legal holiday. The collector's stamp on the estate tax return, Form 706, shows that it was filed on April 15, 1938. The return, therefore, was delinquent one day. The executors elected in the return to have the property of the estate valued in accordance with the method authorized by subdivision (j) of section 302 of the Revenue Act of 1926 as added by section 202 of the Revenue Act of 1935. It appears that the return was forwarded to the Collector at Albany, New York, by the estate's attorney in New York City on April 14, 1938.
Article 63 of Estate Tax Regulations 80 reads in part as follows:
If placed in the mails the return should be posted in ample time to reach the Collector's office, under ordinary handling of the mails, on or before the date on which the return is required to be filed. If a return is made and placed in the mails in due course, properly addressed, and postage paid, in ample time to reach the office of the Collector on or before the due date, no penalty will attach should the return not be actually received by such officer until subsequent to that date.
In view of the distance between New York City and Albany it does not appear that the letter placed in the mails in New York City would ordinarily be delivered to the addressee In albany on the same day. Conceding, but not admitting, that the return was placed in the mails in ample time to reach the collector's office on the due date, the estate is not entitled to the optional valuation benefits for the reason that the failure of the estate to comply with the statutory requirements entitling it to such benefits may not be regarded as the assertion of the penalty by the Bureau.
Under the statutory requirements the election is available to the executor only at the time the return is filed within fifteen months from the decedent's death, or within the period of an extension of time for filing granted under the provisions of article 68 or 69 of the Estate Tax Regulations 80.
It does not appear that the executors have met the conditions indicated. Furthermore, an examination of the return shows that a redetermination of the tax based on a valuation of the property of this estate as of the date of death results in a deficiency in estate tax.
Under the circumstances and since it does not appear than an overpayment of estate tax has been made in this case, the informal claim filed on April 24, 1941, as confirmed by the formal claim on Form 843 filed on September 18, 1941, for the refund of $2,135.01 is rejected in its entirety.
By this time the statutory period for determining a deficiency against the executors had expired, but the estate had been distributed and the Commissioner issued deficiency notices to the distributees under date of April 11, 1942.
OPINION.
KERN, Judge:
Respondent's contentions in the instant case are that the estate tax return of the transferor estate was not ‘filed within the time prescribed by law or prescribed by the Commissioner in pursuance of law,‘ and was not signed under oath by both executors as required by article 84, Regulations 80, and therefore no valid election was made by the executors to have the estate valued as of a date one year after decedent's death under the provisions of section 302(j) of the Revenue Act of 1926, as added by section 202(a) of the Revenue Act of 1935.
If respondent's contentions are correct the estate is to be valued as of the date of the decedent's death, and there will be a deficiency in estate taxes due from the transferor estate for which petitioners, as transferees, will be liable.
SEC. 302. 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 the United States—(j) If the executor so elects upon his return (if filed within the time prescribed by law or prescribed by the Commissioner in pursuance of law, the value of the gross estate shall be determined by valuing all the property included therein on the date of the decedent's death as of the date one year after the decedent's death, except that (1) property included in the gross estate on the date of death and, within one year after the decedent's death, distributed by the executor (or, in the case of property included in the gross estate under subdivision (c), (d), or (f) of this section, distributed by the trustee under the instrument of transfer), or sold, exchanged, or otherwise disposed of, shall be included at its value as of the time of such distribution, sale, exchange, or other disposition, whichever first occurs, instead of its value as of the date one year after the decedent's death, and (2) any interest or estate which is affected by mere lapse of time shall be included at its value as of the time of death (instead of the later date) with adjustment for any difference in its value as of the later date not due to mere lapse of time. * * *
Petitioners contend that the estate tax return was timely filed and the election validly exercised to have the estate valued as of the date one year after the decedent's death, and rely particularly upon the last two sentences in article 63 of Regulations 80.
ART. 63. When return required— Date of filing.— * * * The duty to file a return depends upon the value of the gross estate on the date of the decedent's death, regardless of any valuation as of a subsequent time that the executor may use by virtue of his election under subdivision (j) of section 302, as added by section 202 of the Revenue Act of 1935, since such election may be made only upon the return. In the case of a resident, the return must be filed with the collector in whose district the decedent had his domicile at the time of death. In the case of a nonresident citizen, it must be filed with the collector in whose district the gross estate in the United States was situated; or, if the gross estate in the United States was situated in more than one district, or, if no part of the gross estate was situated in the United States, it must be filed with the collector for the second district of New York, or with such collector as the Commissioner may designate. The return on Form 706 must be filed in duplicate within 15 months after the date of death, if the decedent died on or after August 31, 1935, and within 1 year after the date of death, if the decedent died before August 31, 1935. If the return is due 15 months after the decedent's death, the due date is the day of the fifteenth calendar month after his death numerically corresponding to the day of the calendar month in which death occurred, except that, if there is no numerically corresponding day in such fifteenth month, the last day of such fifteenth month is the due date. For example, if the decedent died On august 31, 1937, the due date is November 30, 1938. If the due date for filing the return falls on a Sunday or on a legal holiday, the due date for filing will the the day following such Sunday or legal holiday. If placed in the mails the return should be posted in ample time to reach the collector's office, under ordinary handling of the mails, on or before the date on which the return is required to be filed. If a return is made and placed in the mails in due course, properly addressed, and postage paid, in ample time to reach the office of the collector on or before the due date, no penalty will attach should the return not be actually received by such office until subsequent to that date.
In the alternative petitioners contend that the conduct of the Commissioner after the filing of the return amounted to and should be considered as a retrospective extension of time to file, that the Commissioner waived the tardiness (if any) of the return, and that the Commissioner, by his conduct, is estopped from questioning the timeliness of the return.
The respondent contends with regard to the provisions of article 63, Regulations 80, relied upon by petitioners, that they have to do only with the question of whether a penalty for delinquent filing will be imposed under certain circumstances, and are not controlling when the question is whether a return is timely filed. However, the inference is clear that the penalty would not attach under the circumstances set out in the regulation because there is no delinquency in filing when ‘the return is made and placed in the mails in due course, properly addressed, and postage paid, in ample time to reach the office of the collector on or before the due date.‘ The regulation does not say that the penalty will be waived, but that ‘no penalty will attach.‘ Any doubt concerning the construction of this regulation is resolved by the clarifying changes made therein by Regulation 105, section 81.63, wherein it is said that ‘If a return is made and placed in the mails in due course, properly addressed, and postage paid, in ample time to reach the office of the collector on or before the due date, the filing will not be regarded as delinquent should the return not be actually received by such officer until subsequent to that date.‘ Thus we have the Commissioner by his regulations stating that under the circumstances set forth in the pertinent article the return is not to be regarded as delinquent, or, stated affirmatively, that the return will be regarded as timely.
The regulations of the Commissioner are particularly important in this case because the revenue acts do not themselves carry specific requirements with regard to the filing of estate tax returns, but merely provide that ‘the executor shall * * * , at such times and in such manner as may be required by regulations made pursuant to law, file with the collector a return under oath * * * .‘ See sec. 304(a), Revenue Act of 1926. Thus the time and manner of the filing of estate tax returns are to be fixed by government regulation and not by specific statutory provisions. Therefore cases such as Appeal of Sam Satovsky, 1 B.T.A. 22, are not controlling.
The regulation in question does not elaborate upon the simple requirement that the return should be ‘filed with the collector.‘ Certainly a manual delivery by the taxpayer to the collector is not necessary because the regulation which prescribes the manner of filing under the statute recognizes that the return may be filed by mail. A similar regulation applies to the filing of income tax returns. See Regulations 101, art. 53-4; Regulations 111, sec. 29.53-4. When the filing of the return is done by mail, the regulation requires that the return be mailed ‘in ample time to reach the office of the collector on or before the due date‘ of the return. No reference is made in the regulations to the office hours of the collector. If the Commissioner had deemed it important or desirable that returns filed by mail should reach the office of the collector during certain business hours of the due date he could have easily so provided. See Rules 9 and 1, Rules of Practice before the Tax Court of the United States. His reason for not considering this requirement advisable is apparent. Office hours in general are variable, subject to change, and not universally known. In the operation of the offices of collectors a certain elasticity in hours is imperative. For example, the record shows and it is commonly known that the offices of collectors are open until midnight on March 15 for the purpose of receiving tax returns filed by mail. On the other hand, a ‘due date‘ is a calendar day always embracing twenty-four hours and always ending at midnight.
The crucial question in the instant case is whether the return may be considered as having been mailed in ample time to reach the office of the collector on April 14. The record shows that the collector's office was located in the same public building which housed the post office department. The collector rented a post office box in that building. The understanding and practice was that the collector's mail (except special delivery mail) was not to be delivered by the post office to the collector's office room, but was to be placed in that box or in an adjacent hamper or truck provided by the collector, and would be called for by him at such times as he might find convenient, whether at 2:30 o'clock in the afternoon or at midnight. Thus, when the return in question had reached the collector's post office box, it had gone as far on its way to the collector as the post office department would take it. Thereafter it was subject to the control of the collector and available to him at any time. Under the circumstances shown here, we conclude that the return was mailed in ample time to reach the office of the collector on the due date, and did reach the office of the collector on that date and was therefore timely filed within the meaning of the controlling regulation.
We, therefore, come to respondent's contention that the return filed April 14 by the transferor estate was not a return within the meaning of the statute because it was signed under oath by only one of the two executors of the estate, and therefore does not comply with the provisions of article 64, Regulations 80, which says: ‘If there is more than one executor or administrator the return must be made jointly by all.‘ No case has been cited to us, nor has any come to our attention, wherein this sentence in respondent's regulation has been construed by the courts.
The statute, which we have already quoted, merely provides that ‘the executor shall * * * file * * * a return under oath. * * * ‘
The statute, in referring here and elsewhere to ‘the executor‘ in the singular, merely recognized the unity in law of the executorship, regardless of how many individual coexecutors there may be. This unity is a principle embedded in our jurisprudence. As it is stated in 21 American Jurisprudence, Executors and Administrators, sec. 751: ‘The general rule is that several co-administrators or co-executors are, in law, only one person representing the testator, and acts done by one in reference to the administration of the testator's goods are deemed the acts of all, inasmuch as they have a joint and entire authority over the whole property belonging to the estate.‘ This principle is recognized in New York. See In re Henbach's Will, 300 N.Y. Supp. 810, wherein it is stated: ‘(Coexecutors) constitute an entity, and are regarded in law as an individual person. Consequently, the acts of any one of them, in respect to the administration of estates (under their charge) are deemed to be the acts of all for they have all a joint and entire authority over the whole property.‘
These authorities indicate that one corollary of the principle of the unity of the executorship is that one coexecutor is authorized to act in all usual matters of administration on behalf of all the coexecutors jointly. His act is equivalent to the joint act of all. In re Appel, 192 N.Y. Supp. 136; In re Junkerfield's Estate, 269 N.Y. Supp. 514; Irwin v. Larson, 94 Fed.(2d) 187.
It should be pointed out that the regulation in question provides that ‘the return must be made by all jointly‘ and that there is no requirement that the return be signed under oath by each of the individual coexecutors. The purpose of this regulation would seem to be to prevent the filing of a separate return by each coexecutor and to provide for the filing of only one return by all, thus recognizing, as the statute does, the unity of the executorship.
Pursuant to the authorities above cited, we conclude that an estate tax return made in the name and on behalf of two coexecutors, and signed by one coexecutor is a ‘return made jointly‘ within the meaning of the regulation.
Even if we are in error in this interpretation of the regulation, we would be unable to conclude that the return in question filed in the name of both executors, and never denied validity on the ground of signature by the Commissioner until some five years later, was not a return within the meaning of the statute. The situation under such an interpretation of the regulation seems similar to the ordinary procedural requirement that in suits at law all the coexecutors should join as plaintiffs or be joined as defendants. Where this is not done, the remedy is by plea in abatement, and if no such plea is filed the defect is deemed to be waived. Irwin v. Larson, supra.
One reason why we are persuaded that our construction of the regulation is correct is that if it were construed otherwise a serious question would arise as to validity.
In Baldwin v. Commissioner, 94 Fed.(2d) 355, the Circuit Court of Appeals considered the validity of a rule of the United States Board of Tax Appeals which, although later changed, at that time prescribed that ‘A majority of the fiduciaries shall either sign or verify the petition * * * .‘ In that case only one of two executors had verified the petition and we accordingly dismissed it. The Circuit Court in reversing said:
By the provisions of 26 U.S.C. Sec. 422 ‘the executor‘ is charged with the payment of the tax. And he is liable therefor both personally, and in his representative capacity. 26 U.S.C.A. 425; and see 31 U.S.C.A. 192. It will be noted that these statutes imposing liability employ, as does the statute providing for redetermination by the Board of a claimed deficiency, the term ‘the executor.‘ This term should be given the same meaning in both connections. If each of several executors is severally liable as ‘the executor‘, then each should be allowed to file a petition as ‘the executor.‘ * * *
However, it would seem that the reasoning of the Circuit Court would be equally applicable to the instant case, where one of the two executors has filed a return on behalf of the estate which the statute has required of ‘the executor.‘ Upon the same reasoning it might successfully be argued that the sentence of the regulation in question here as applied to the facts of the instant case is invalid and not controlling.
For the reasons given above we conclude that a valid election was made by the executor of decedent's estate to have the estate valued as of a date one year after decedent's death.
Reviewed by the Court.
Decision will be entered under Rule 50.