By contrast, New York courts applied that State's apportionment statute more narrowly and declined to apportion estate tax to donees. See In re Metzler, 579 N.Y.S.2d 288, 290 (App. Div. 1992); In re Estate of Coven, 559 N.Y.S.2d 798 (Surr. Ct. 1990).
Contrary to respondent's contention, we find that respondent has not proffered a scintilla of evidence indicating that he received the Totten trust accounts from decedent as an inter vivos gift. Hence, upon petitioners' prima facie showing that there were estate taxes due pursuant to Tax Law ยง 954 and EPTL 2-1.8, summary judgment was properly granted ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Respondent's contention that the Totten trust accounts can only be used to satisfy estate taxes if the residuary estate lacks sufficient funds is similarly without merit. It is well settled that EPTL 2-1.8 authorizes apportionment of both testamentary and nontestamentary assets which inure as a result of a decedent's death, in the absence of a contrary intention clearly expressed in either the will or in the terms of the trust ( see, Matter of Pepper, 307 N.Y. 242, 251; Matter of Metzler, 176 A.D.2d 15, 18; Matter of Fried, 132 Misc.2d 1039, 1040-1041; Matter of Spencer, 95 Misc.2d 512, 515). Accordingly, we find no error in the determination by Surrogate's Court that respondent was liable for his proportionate share ( see, Matter of Berson, 170 A.D.2d 504, 505).
"has no jurisdiction to review a determination of the ... taxing authority with respect to what is included in the gross taxable estate ... ,[a matter] which is binding on the court.... [Therefore,] [a]pportionment is made on the property as taxed by the authorities." (Matter of Fried, 132 Misc 2d 1039, 1041-42 [Sur Ct, Westchester County 1986]; see also Matter of Metzler, 176 AD2d 15 [4th Dept 1992]). Based upon the foregoing, the court concludes that, in the tax-apportionment calculation, the figure to be used as the value of what passed to Ms. L. in respect of the bank account is the value finally determined by the taxing authorities.
To reiterate, under ARTICLE EIGHTH B decedent provides that with regard to property passing outside his will, taxes are to be apportioned in accordance with New York law. Absent an otherwise provision, it is settled that EPTL 2-1.8 does not authorize the apportionment of estate tax against inter vivos gifts made by a decedent ( Matter of Metzler, 176 AD2d 15; Matter of Coven, 148 Misc 2d 132). As the court in Metzler (at 18) instructs: