Opinion
Docket No. 19346.
1950-11-28
L. T. McCOURT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
W. G. Boone, Esq., and Charles H. Davis, Esq., for the petitioner. S. Earl Heilman, Esq., for the respondent.
Under section 311 of the Internal Revenue Code petitioner is determined to have a personal liability under sections 3466 and 3467, Revised Statutes, for unpaid income and declared value excess-profits taxes of the Merchants Warehouse Co. by reason of his distribution of all of the assets of that company on liquidation without first satisfying its indebtedness for taxes due the United States. W. G. Boone, Esq., and Charles H. Davis, Esq., for the petitioner. S. Earl Heilman, Esq., for the respondent.
Under section311(a)(2) of the Internal Revenue Code,
respondent has proposed a fiduciary liability against petitioner, as arising under sections 3466 and 3467 of the Revised Statutes, resulting from the distribution by petitioner of assets of the Merchants Warehouse Co. upon its liquidation without first satisfying a liability of that company for unpaid income and declared value excess profits taxes in the respective amounts of $1,762.87 and $1,049.24 for the period January 1 to November 16, 1942. The liability is in the sum of the taxes due and unpaid.
SEC. 311. TRANSFERRED ASSETS.(a) METHOD OF COLLECTION.— The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this chapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds):(2) FIDUCIARIES.— The liability of a fiduciary under section 3467 of the Revised Statutes, as amended (U.S.C., Title 31, Sec. 192) in respect of the payment of any such tax from the estate of the taxpayer.Any such liability may be either as to the amount of tax shown on the return or as to any deficiency in tax.
By agreement of counsel, this proceeding was consolidated with that of Grace McCourt, Docket No. 19347, for hearing only. Joint decision of the two cases was not agreed to, as the liabilities were different in character.
FINDINGS OF FACT.
Petitioner is a resident of Memphis, Tennessee. His brother-in-law, one L. E. McKnight, died late in the year 1942. At the time of McKnight's death he was the owner of practically all of the stock of the Merchants Warehouse Co., and the petitioner was appointed administrator of his estate. The petitioner also, as secretary and treasurer and a director of the Merchants Warehouse Co., proceeded to liquidate the affairs of that company.
Upon liquidation of the Merchants Warehouse Co. by the petitioner there was realized in cash a total of $7,052.20. From this amount petitioner distributed $446.64 in settlement of certain unpaid expenses of the corporation and $338.29 in social security taxes due by the corporation. Of the balance of the assets, he distributed $669.42 as administration expenses of the estate of L. E. McKnight, $500 in settlement of a personal judgment entered against the decedent, McKnight, and the balance, in the sum of $5,097.85, he distributed to Grace McKnight, the widow of the decedent. The aforesaid distribution to the widow was made as in pursuance of an order of the Probate Court of Shelby County, Tennessee, directing a payment of $5,000
from the assets of the estate of McKnight to his widow as the allowance due her for a year's support under the laws of Tennessee.
The discrepancy between this figure and the $5,097.85, actually paid, is not explained.
At the time petitioner made the foregoing distributions, the Merchants Warehouse Co. was indebted to the United States for unpaid income and declared value excess profits taxes in the respective amounts of $1,762.86 an- $1,049.24. As a result of these distributions the Merchants Warehouse Co. was left without assets, and the taxes in question still remain due and unpaid.
OPINION.
LEECH, Judge:
Section 3466 of the Revised Statutes provides in part:
Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; * * *
Section 3467 of the Revised Statutes provides:
Every executor, administrator, or assignee, or other person, who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid.
The liability of the Merchants Warehouse Co. for the taxes in question has been finally determined by decision of this Court in Estate of L. E. McKnight, 8 T.C. 871. The moneys realized by the petitioner in his liquidation of the Merchants Warehouse Co. constituted in his hands a trust fund held first for the creditors of that corporation and secondly, as to any excess over and above corporate debts, for the owner of the stock of the corporation, which was the estate of L. E. McKnight, for which petitioner was acting as administrator. Updike v. United States, 8 Fed.(2d) 913, certiorari denied, 271 U.S. 661. These funds were not an asset of the estate of the deceased stockholder. The estate or the petitioner as administrator thereof had no right to the assets of the Merchants Warehouse Co. but only to such excess as might remain after payment of the debts of that corporation. Here the petitioner, after paying two items of indebtedness on the part of the corporation, treated the balance of the assets in his hands as the property of the estate of McKnight, and disbursed them in payment of a personal judgment against McKnight, administration expenses, and an allowance of $5,000 made by the Probate Court from the assets of the McKnight estate to the widow in satisfaction of her right under the Tennessee statute for a year's support. These payments left the corporation without funds for the satisfaction of indebtedness for taxes due the United States.
Petitioner contends, in so far as the payment of $5,097.85 to the widow is concerned, that such payment was ordered by the court and that under the Tennessee law this amount is not subject to the claim of creditors against the estate.
This contention overlooks the fact that the Tennessee statute has application only to assets of the estate and, as pointed out above, the assets of the estate here consisted of the stock formerly owned by the decedent in the Merchants Warehouse Co., which carried with it the right to receive only so much of the assets of that company as remained after the payment of its debts. The moneys held by the petitioner as liquidator of the Merchants Warehouse Co. were mistakenly treated by the petitioner, as administrator of the estate of McKnight, as property of the estate. They were not assets received by the administrator for payment of an allowance to the widow for support. Combs v. Combs, 131 Tenn. 66, 173 S.W. 441. In Mary A. Lyon, Admnx. v. J. T. Lyon & W. H. Hill, 1 Tenn.Ch. 225, the court held that the above quoted statutes did not permit a widow's allowance to be paid out of the assets of a partnership in which her husband had been a partner, since the husband had no interest in the partnership assets until the partnership debts had been paid, and such debts were greater than the assets.
CODE OF TENNESSEE.8331 4020 (2285). Year's support for widow and family.— Upon the application of the widow of an intestate, or of a widow who dissents from her husband's will, the county court shall appoint three freeholders, unconnected with her either by consanguinity or affinity, who, being first duly sworn to act impartially, shall set apart so much of the crop, stock, provisions, moneys on hand or due, or other assets, as may be necessary for the support of such widow and her family until the expiration of one year after the decease of her husband.8232 4021 (2286). Year's support is widow's absolute property, and exempt from debts.— The moneys and effects so set apart shall be the absolute property of the widow for said uses, and shall not be taken into the account of the administration of the estate of said intestate, nor seized upon any precept or execution.
In Jessie Smith, Executrix, 24 B.T.A. 807, we held that the tax liability due from the decedent to the Government did not have priority over a statutory allowance to a widow which was required by local law, where the assets of the decedent in the hands of the fiduciary were insufficient for both. Petitioner relies upon this decision, but it has no application to the present facts. Here the assets used in payment of the widow's allowance were not assets of the decedent's estate but assets held in trust by petitioner for satisfaction first of the creditors of the Merchants Warehouse Co. As was pointed out in Estate of L. E. McKnight, supra, involving the liability of the estate as a transferee in connection with the transactions here involved, such liability of the estate was ‘to make good the value of assets taken by it and to which it was not entitled.‘
Petitioner's counsel make a further contention that a burden rests upon the Government to show that a tax is due from the Merchants Warehouse Co. or the transferee liability determined by us in Estate of L. E. McKnight, supra, has not been paid and satisfied. We have found as a fact that such payment has not been made, and this finding is amply justified by the record. Respondent offered in evidence, and petitioner's counsel specifically agreed to their receipt as such, statements of the tax accounts of assessments and collections with respect to these liabilities, signed by the collector of internal revenue. These were offered by respondent for the particular purpose of showing that the taxes in question and the transferee liability have not been satisfied. Petitioner's counsel may not agree to the acceptance of these in evidence without limitation and later contest the facts thereby established.
Petitioner's counsel further contend that the burden being upon the respondent to establish a liability on the part of the petitioner, such burden makes necessary that it be established that petitioner had knowledge at the time he made the aforesaid distributions that the indebtedness for taxes here in question existed. In answer to this it need merely be said that knowledge upon the part of the fiduciary as to the existence of the liability to the Government is not a specific requirement under section 3466 and 3467, Revised Statutes. Respondent's proof has clearly established the condition laid down by those statutes and has consequently made the prima facie showing required of him. If the petitioner is exempt from the determination of a personal liability under those statutes by reason of the fact that he was ignorant of the liability due the United States for unpaid taxes, the establishing of this lack of knowledge is a matter of defense. The petitioner testified at the hearing of this proceeding and was never interrogated by his counsel as to whether he was in fact ignorant of the taxes due the Government from Merchants Warehouse Co. The record contains no evidence that petitioner was ignorant of these liabilities, and in this connection it is noted that he was secretary and treasurer of the Merchants Warehouse Co. and signed its tax return for the year for which these tax liabilities were asserted.
It is our conclusion that the record clearly establishes that there is an individual liability upon the petitioner under sections 3466 and 3467, Revised Statutes, for the unpaid tax liabilities of $1,762.87 and $1,049.24 of the Merchants Warehouse Co., which personal liability is subject to assessment and collection under section 311(a)(2) of the Internal Revenue Code.
Decision will be entered for the respondent.