Opinion · United States Tax Court

Estate of Christ v. Comm'r

54 T.C. 493

Type: Opinion
Court: United States Tax Court
Jurisdiction: Federal
Date: 1970-03-19
Topic: general

OPINION Income Tax Oases: Dochet Nos. 95357, 13lfB-6i The basic issues in the income tax cases are whether Daisy acquired the life interest in the portion of the trust attributable to Andrew’s share of the community property (41.307 percent) in a transaction which constituted a purchase, and, if so, whether she is entitled to amortization deductions in the years in issue for the cost of acquiring the life interest.2 Petitioner contends that Daisy acquired the life interest in the portion of the trust attributable to Andrew’s community property transferred to the trust in a transaction which constituted a purchase or a bargained-for sale or exchange. He contends that the widow was entitled to amortization deductions for the cost of acquiring the 41.307-percent life interest during the expected useful life of the interest acquired, which he asserts was equivalent to Daisy’s life expectancy as of the date the life interest became effective to the widow. He argues that the value of the life interest acquired should be computed on the basis of a reasonably-expected yield Of 8.2 percent from the trust assets and upon a life expectancy of a female lifetime annuitant of Daisy’s age on April 16,1952, which petitioner asserts is 12.68 years. He argues that the life interest in 41.307 percent of the trust, as well as the remainder interest in Daisy’s portion of the community property should be valued as of April 16,1952, the date of Andrew’s death, because the widow received the income …

Citator

Cited by: 57 opinions

ESTATE OF CHRIST v. COMMISSIONER OF INTERNAL REVENUE,54 T.C. 493(1970)

ESTATE OF DAISY F. CHRIST, DECEASED, ROBERT JOHNSON CHRIST, EXECUTOR,

PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket Nos. 95357, 1342-64, 6182-65.

United States Tax Court.

Filed March 19, 1970.

Decedent was a widow and a resident of California. She died on Dec. 2, 1961. During the probate of her husband's will, subsequent to his death on Apr. 16, 1952, decedent made an election, effective Sept. 30, 1953, whereby she agreed to transfer all of her share of community property to a testamentary trust created pursuant to the will. The deceased husband's share of the community property was also transferred to the trust. The trust provided that the widow was to be the sole beneficiary of a life interest, with the remainder to be paid to the spouses' son upon the termination of the trust at the widow's death. The son was also the trustee of the trust. On Dec. 9, 1959, less than 2 years before the decedent's death, an agreement was executed between the son and the decedent whereby she agreed to assign and transfer her entire life interest in the portion of the trust attributable to her share of the community property transferred to the trust in return for a fixed, lifetime, private annuity. The income from the trust was currently distributable to the widow, but the trustee failed to distribute net income which had accrued to the trust in 1960 and 1961. The trustee also erroneously reportedPage 494income as taxable to the trust in the taxable years 1957, 1958, and 1959, and paid income taxes thereon.Held:

1. On the facts, with regard to the income tax cases,held:(1) The widow purchased the life interest in the portion of the trust attributable to her husband's share of community property transferred to the trust and she is entitled to amortization deductions based on her cost basis in the life interest and her life expectancy, as reflected in the regulations for valuation of a life estate; (2) The attempted assignment of her life interest in the portion of the trust attributable to her share of community property was in violation of a spendthrift provision of the trust. The transaction, lacking substance, was effected merely to avoid income and estate taxes and it is considered a sham. All of the net income of the trust is includable in the widow's income in her taxable years 1960 and 1961. Annuity payments received in 1960 and 1961 are not recognized and amounts reported as income from the annuity are eliminated from Daisy's income for 1960 and 1961.

2. On the facts, with regard to the estate tax case,held:(1) The widow's election of Sept. 30, 1953, constituted a transfer of property with a retained life estate for less than adequate and full consideration in money's worth. The attempted transfer of the life estate in the portion of the trust attributable to the widow's share of community property was a sham and is not recognized. The value at the date of death of the portion of the trust corpus attributable to the widow's share of community property transferred to the trust, less the consideration received in the transaction, is includable in decedent's gross estate under secs. 2036 and 2043 of the Code; (2) The consideration received in the transaction, for the purpose of valuation under sec. 2043, is the value of the life interest in the portion of the trust attributable to her husband's share of the community property transferred to the trust (valued as of the effective date of the widow's election), plus other consideration received by the widow under her husband's will;Righterv.United States,400 F.2d 344(C.A. 8, 1968);Estate of Gregory,39 T.C. 1012(1963); (3) Income from the trust accrued prior to decedent's death, but undistributed, is includable in decedent's gross estate under sec. 2033; (4) Overpayments of income taxes by the trustee is income to which decedent was entitled, and the enforceable claim against the trustee constituted a property interest of decedent at the date of her death includable in her estate under 2033; (5) There was reasonable cause for failure to file the decedent's estate tax return timely and no additions to tax should be made under sec. 6651(a).

Donald B. Falconer,for the petitioner.Roger A. PottandJoseph A. Nadel,for the respondent.

HARRON,Judge:

Respondent determined a deficiency in estate taxes, Estate of Daisy F. Christ, docket No. 6182-65, in the amount of $132,786.70, and he made an addition to tax under section 6651(a) of the Code in the amount of $33,196.68, representing a 25-percent penalty for late filing of the estate tax return.¹Page 495

Respondent also determined deficiencies in income taxes of Daisy F. Christ, dockets Nos. 95357 and 1342-64, for the 5 taxable years 1957-61, inclusive, in the following amounts:

Docket No. Year Income taxdeficiency

{1957 $5,389.72 95357 ................. {1958 5,653.52 {1959 3,600.57 1342-64 ............... {1960 14,970.72 {1961 6,656.03

The issues for decision under the income tax cases are as follows:

Whether Daisy's election to have her share of community property pass under her husband's will (which provided for the community property to be placed in a testamentary trust in which Daisy was the sole income beneficiary during her life) constituted a bargained-for sale or exchange of Daisy's remainder interest in her share of the community property as consideration for a life interest in the portion of the community property contributed to the testamentary trust by her husband, Andrew, or whether Daisy's irrevocable transfer of the remainder interest in her share of the community property should be considered a gift, and the receipt of the life interest in Andrew's share of the community property passing to the testamentary trust considered a bequest under Andrew's will.

If her election is considered a bargained-for sale or exchange, whether Daisy is entitled to amortization deductions based on the cost of acquiring the life interest in Andrew's portion of the community property transferred to the trust; and, if so, what was the cost of acquiring the life interest and what was its expected useful life.

Whether an agreement between the trustee, her son Robert, and Daisy, in which she allegedly transferred her life estate in the portion of the trust attributable to her share of community property in exchange for a fixed-amount, lifetime, private annuity, should be recognized for Federal tax purposes; and, if so, whether Daisy is entitled to exclusions from gross income of a percentage of the annuity payments received in 1960 and 1961, as a recovery of the cost of acquiring the alleged annuity.

With respect to the estate tax case, the issues for decision are as follows:

Whether Daisy's transfer of her remainder interest in her community property in return for a life interest in Andrew's portion of the community property transferred to the testamentary trust, was an exchange for full and adequate consideration in money or money's worth.

If the transfer of her remainder interest was not for full and adequate consideration in money or money's worth, whether Daisy's transfer of her share of community property constituted a transfer ofPage 496property with a retained life estate, the value of which is includable in her gross estate under section 2036(a) of the Code.

Whether Daisy's transfer of her life interest in the portion of the trust attributable to her share of the community property in exchange for a fixed-amount, lifetime, private annuity should be recognized for tax purposes; and, if so, whether it was a transfer of property in contemplation of death within the meaning of section 2035, for less than adequate and full consideration in money or money's worth.

If the agreement between Daisy and Robert constituted a transfer in contemplation of death for less than adequate and full consideration, what interests in the trust property are includable in Daisy's gross estate, by application of sections 2035 and 2036, and what is the value of the interests includable under sections 2035 and 2036 at the date of her death.

Whether certain amounts of net income of the testamentary trust, earned during Daisy's lifetime, but which were held by the trustee and were undistributed at the date of her death, should be included in her gross estate.

Whether certain claims of the trust for refund of income taxes should be included in Daisy's gross estate.

Whether the failure to file an estate tax return for Daisy's estate within the time prescribed by statute was due to reasonable cause and not due to willful neglect.

FINDINGS OF FACT

Some of the facts have been stipulated, and they are incorporated herein by reference.

Daisy F. Christ (hereinafter referred to as Daisy) died, testate, on December 2, 1961. Income tax returns were filed by Daisy on a cash basis for the calendar years 1957, 1958, 1959, and 1960. These returns for the taxable years 1957 through 1960, inclusive, were filed with the district director of internal revenue in San Francisco. Daisy's son, Robert Johnson Christ, was duly appointed as the executor of Daisy's estate, and, acting in that capacity, he is the petitioner in these cases. Petitioner, as executor of Daisy's estate, filed an income tax return for Daisy's taxable year, 1961, with the district director of internal revenue in San Francisco. Petitioner also filed the estate tax return for Daisy's estate with the district director in San Francisco. At the date of her death, and during the taxable years 1957 through 1961, Daisy was a resident of Piedmont, Alameda County, Calif. Petitioner, Robert, was also a resident of Alameda County when he filed Daisy's estate tax return and when he filed the petitions and amended petitions in these cases with this Court.Page 497

Daisy's husband, Andrew Christ (hereinafter referred to as Andrew), died testate on April 16, 1952, a resident of Piedmont. The estate tax return was filed by the executor of Andrew's estate with the district director of internal revenue in San Francisco.

Andrew was survived by his wife, Daisy. Daisy was born on January 19, 1879, and on the date of Andrew's death she was 73 years 2 months and 27 days old.

Andrew's will, which was executed on March 26, 1945, was duly probated in the Superior Court of the State of California, for the County of Alameda. California is a community property State. Andrew's estate was distributed on September 30, 1953, in accordance with the terms of his will, pursuant to a decree of the Probate Court issued on the same date. Attached to and made part of Andrew's will, was an agreement executed by Daisy whereby she agreed to be bound by Andrew's will.

A testamentary trust was provided for in Andrew's will. Under the terms of the will, after certain small bequests, it was provided that all the rest, residue, and remainder of the community property of the spouses, including Daisy's share of such property, be transferred to a trustee and administered by him during the course of the trust in accordance with the provisions set forth in Andrew's will. Daisy elected to have her share of the community property pass under Andrew's will. The will designated that Robert was to be the trustee and it was specifically provided that the property passing under the terms of the will be devised and bequeathed to Robert, in trust, however, with the entire net income from the trust payable to Daisy during her life. It was provided that the trust terminate upon her death and the entire principal and all accrued and undistributed income be distributed free from any trust to Robert. The pertinent provisions of Andrew's will are as follows:

THIRD: I hereby declare that all property of my said wife and myself, whether standing in my name or in the name of my said wife or in our joint names, is the community property of my said wife and myself. I hereby declare that if my said wife should survive me, it is my intention by this my last will and testament to dispose of all the community property of my said wife and myself (as well as all property, if any, which may be determined to be my separate property), including all the community rights and interests of my said wife therein as well as my own and that my said wife shall accept the provisions herein contained in place of taking her share of our community property. I have, however, made these dispositions of our community property after consultation with my said wife and she has elected to take in accordance with the provisions of this will and has agreed thereto, evidencing such election and agreement by executing, at the time of the execution hereof, the instrument annexed hereto.

FOURTH:

* * * * * * *Page 498

C. I give, devise and bequeath all the rest, residue and remainder of said property to my said son ROBERT JOHNSON CHRIST, IN TRUST, HOWEVER, for the following uses and purposes, to wit:

1. The trustee shall collect and receive the income from the trust estate and shall pay or apply the entire net income from the trust estate in monthly or other convenient installments to my said wife, DAISY FUGATE CHRIST, while she is living.

2. If the trustee shall at any time during the term of this trust determine that my said wife is in need of funds on account of illness, injury or other emergency or to provide for her proper care, maintenance, comfort and support according to her station in life, and if the trustee shall also determine that the net income from the trust estate payable to my said wife, together with her income, if any from any other sources, is insufficient for such purposes, then the trustee may at any time apply for such purposes, or any of them, such reasonable portions of the trust estate as he shall deem necessary. The trustee in his sole discretion shall determine what payments shall be made under this paragraph and what sums or things are necessary or proper to accomplish said purposes but the trustee shall not be required to see to the application of any such payment.

3. This trust shall terminate upon the death of my said wife and upon such termination the entire principal of the trust estate and all accrued or undistributed income therefrom, if any, then held by the trustee shall be distributed free from any trust to my said son, ROBERT JOHNSON CHRIST, if he be then living, or if he be then deceased, to his issue, if any, who shall be then living, by right of representation, or if neither my said son nor issue of my said son be then living, to those persons who, if I had died intestate at the time of such termination, would have been entitled to succeed to my separate property under the laws of succession of the State of California at the time of such termination and in the proportions to such persons, respectively, as shall be fixed by such laws.

4. The trustee shall hold and manage the trust estate, with full power and authority at any time and from time to time to do any and all acts which he may deem necessary in connection therewith, including, without limiting the generality of the foregoing, power upon such terms and conditions as the trustee deems advisable (i) to sell, exchange, repair, partition, divide, consent to partition or otherwise dispose of any property at any time forming a part of the trust estate; (ii) to borrow money and to secure the same by mortgage, deed of trust or pledge of any property forming a part of the trust estate; (iii) to pay and discharge any deeds of trust, mortgages, liens or other charges against the trust property; (iv) to invest and reinvest any moneys at any time forming a part of the trust estate in such securities or property as the trustee shall deem advisable, irrespective of whether or not such securities or property are approved by law as investments for trust funds; (v) to have, respecting bonds, shares of stock and other securities, all the rights, powers and privileges of an owner, including, without limiting the foregoing, holding securities in his own name or otherwise, voting, giving proxies, making payments of calls, assessments and other sums deemed by the trustee expedient for the protection of the interest of the trust estate, exchanging securities, selling or exercising stock subscriptions or conversion rights, participating in foreclosures, reorganization, consolidations, mergers, liquidations, pooling agreements, voting trusts, and assenting to corporate sales, leases and encumbrances; and (vi) at his option and so long as he may deem advisable, to retain as part of the trust estate any securities or property which may be transferred to him under this trust, whether the same are approved investments for trust funds or not.

5. The trustee shall pay out of the income of the trust estate, or if said income be insufficient then the balance thereof out of principal, all taxes, assessments,Page 499costs, fees and expenses of every kind and nature, incurred or expended in the collection, care, administration, protection or distribution of the trust estate, for the payment of which the trust estate or the trustee may become chargeable, excepting, however, such of said items which under the provisions hereof are, or as hereinafter provided may be determined by the trustee to be, chargeable against principal, which said last mentioned items shall be paid by the trustee out of principal. Whenever the principal of the trust property or any part thereof shall be invested in bonds, notes or other securities bought or received at a premium or discount, the person or persons entitled to receive the income shall be entitled to receive the full income thereof, and no deduction therefrom or addition thereto shall be made for the purpose of amortizing such premium or discount, and no part of the amount received upon the maturity or redemption of any securities shall be considered as income, no matter at what price such securities may have been purchased. All cash dividends, except liquidating dividends, shall be treated as income and all stock dividends and all liquidating dividends shall be treated as principal. Rights to subscribe to securities and the proceeds from the sale thereof shall be considered as principal. Any inheritance taxes or other death taxes, however designated, imposed upon the trust property or the interest of any beneficiary thereunder, whether paid by the trustee or in the proceedings for the administration of my estate, shall be chargeable to principal. Any net profit or net loss from the sale of any property at any time forming a part of the trust estate shall be credited or charged to principal. The trustee shall pay for ordinary repairs to real property and tangible personal property out of income and may create reasonable reserves out of income for such purposes, but otherwise there shall not be charged to income any depreciation or waste of trust property. The trustee shall, except as otherwise herein provided, reasonably determine what shall be charged or credited to income and what to principal.

6. The beneficiaries of this trust are hereby restrained from selling, transferring, anticipating, assigning, hypothecating or otherwise disposing of their respective interests in the corpus of the said trust, or any part thereof, and of their respective interests in the income to be derived and to accrue therefrom, or any part thereof, at any time before the said corpus or the said income shall come into their possession under the terms of said trust; and likewise, the said respective interests of said beneficiaries in the corpus and income of said trusts as aforesaid shall not at any time before the said corpus or the said income shall come into their possession under the terms of this trust be subject to the claims of creditors of the beneficiaries, or any of them, nor be liable to attachment or execution.

The agreement attached to and made part of Andrew's will, whereby Daisy elected to have her share of the community property pass under the terms of the will, was executed by Daisy on April 19, 1945, and in pertinent part it provides as follows:

I, DAISY FUGATE CHRIST, the wife of ANDREW CHRIST, the testator named in and who made the foregoing will, having read said will in its entirety and clearly understanding the same and clearly understanding that my husband by said will has made provision for the disposal of all the community property that may be owned by my said husband and myself at the time of his death, including the share thereof which I would be entitled to take and receive by law upon his death as well as his own share thereof, and being fully convinced in my own mind of the reasonableness and fairness of said will and the wisdom of its provisions, and in consideration of the provisions therein made, I herebyPage 500elect to and do accept, acquiesce in, consent to and agree to be bound by said will and each and all of the provisions thereof, including the disposition at the death of my said husband of all of our community property as therein provided, but it is expressly understood that I do not hereby waive any right that I may have to a family allowance out of the estate of my said husband.

The net value of assets, as of April 16, 1952, transferred into the testamentary trust was $319,842.98, after the deduction of certain charges. It has been stipulated that of this net value, by reason of adjustments for probate expenses, bequests, and other deductions in Andrew's estate, Daisy contributed 58.693 percent of the trust property to the testamentary trust, and Andrew contributed 41.307 percent.

On March 12, 1953, Daisy filed a gift tax return, reporting a gift of her remainder interest in her share of the community property transferred to the trust. To determine the value of her remainder interest, she subtracted from the total value of her share of the community property the present value, as of August 16, 1952, of her life estate in her share which she contributed to the testamentary trust of her husband, Andrew. She also subtracted the sum of $32,142.71 as the alleged "consideration received" by her for her transfer into the trust. However, $31,620.88 was the final determination by the district director of internal revenue as the amount of the "consideration received," the value of the life estate received by Daisy in her husband's share of the community property contributed to the trust. The following computation reflects the method used by the parties to settle the amount of the gift tax owing by Daisy:

Daisy's share, community property (per Andrew Christ estate tax return) ................... $196,904.71

Less: Charges ................................ $5,002.45 Personal property ...................... 1,920.00 Insurance .............................. 2,256.26 9,178.71 ----------- Net community property to trust by Daisy (Daisy's share — 58.693%) ....................... 187,726.00 ----------- Remainder value contributed by Daisy (age 73: $187,726.00 x 0.76066) ............................................ 142,795.66

Consideration received:

Husband's share community property (after charges) ........................... $187,726.00

Less: Estate tax ............. $29,200.24 Inheritance tax ........ 16,408.78 Specific bequest ....... 10,000.00 55,609.02 ----------- ---------- Net transfer to trust by husband, 41.307% .... $132,116.98

Life estate to wife ($132,116.98 0.23934) ................. 31,620.88 --------- Net amount of gift, or transfer, by Daisy ................ 111,174.78

Page 501

Initially, a total gift tax of $9,780.06 was paid by Daisy with her gift tax return. Thereafter, the return was examined by the district director of internal revenue, who proposed a gift tax deficiency of $9,130.21, which was assessed and paid. The deficiency arose, in part, from the disallowance of the sum of $32,142.71, reported as the consideration received in the gift tax return. A claim for refund was filed on September 27, 1956, in the amount of $7,867.96. The refund was allowed to the extent of $6,866.07, based upon the above computation of the net value of the gift. In the gift tax return filed by Daisy on March 12, 1953, prepared by Daisy's attorney, Leo Helzel, under the caption "Description of Gift, Donee's Name and Address, Date and Value" in schedule A attached to the return, the following was stated:

The Last Will and Testament of Donor's husband provided that a Trust would be created from which Donor would receive an income interest for life, upon her transfer to the Trust of her community interest in their property. In order to augment her income by also receiving the income for life from the husband's share of the community, Donor is transferring her community property to the Trust (less gift tax), reserving a life estate as provided by the said Will. Her total transfer to the Trust, after gift tax, amounts to $179,339.02. Since she is retaining a life estate in that transfer, the purchase price being paid by her for the life income from the husband's share is the remainder interest in her own transfer. That remainder interest is valued at $134,785.83. The total amount being transferred to the Trust from the Estate of her husband is $129,785.36, of which she is purchasing the life income, valued at $32,142.71. Hence she is paying $134,785.83 in exchange for property valued at $32,142.71. The amount of her transfer for which she is not receiving full and adequate consideration in money or money's worth is therefore $102,643.12. That is the amount of her gift. The tax thereon is $9,780.06.

The values for gift tax purposes of the interests involved in the "exchange," as reflected in the "Description of Gift," were the subject of controversy. The final values agreed to by Daisy and the Commissioner have been set forth hereinabove.

The parties are agreed to the following facts: On April 16, 1952, all of the property of Andrew and Daisy consisted of their community property; the fair market value of the community property of Andrew and Daisy, after certain deductions in Andrew's estate, such as probate expenses, bequests, and related deductions, was the net amount of $319,842.98, using April 16, 1952, values. It also has been stipulated that the net value of the assets transferred to the testamentary trust under Andrew's will, using April 16, 1952, values, was $319,842.98. It has been stipulated, further, that of the value of $319,842.98, the respective contributions of community property to the trust were 58.693 percent by Daisy, and 41.307 percent by Andrew, through his estate. The value as of April 16, 1952, of Daisy's share of community propertyPage 502transferred to the trust, in which she retained a life interest, amounted to $187,726. The value of Andrew's share of the community property, transferred to the trust through his estate, was the amount of $132,116.98.

The effective date of Daisy's election to take under Andrew's will was September 30, 1953, the date of distribution to the trust of all of the spouses' community property remaining after the payment of certain bequests and other expenses involved in the administration of Andrew's estate. Daisy executed her agreement to have her share of the community property pass under her husband's will in 1945 at approximately the same time that Andrew executed his probated will. However, the parties are agreed that under California law, Daisy was not bound by her agreement attached to Andrew's will before the date of the decree of distribution; and the parties are agreed that Daisy could have elected at any time before the decree of distribution on September 30, 1953, to take her share of the community property to which she was indefeasibly entitled upon her husband's death, irrespective of Andrew's will and her agreement attached thereto. Daisy was in good health on September 30, 1953, the effective date of her election.

Daisy had a high standard of living both before Andrew's death and during the course of the administration of the trust. She lived in a two-story, 3-bedroom home, which contained 3 1/2 baths and had a floor-space, including the basement, of approximately 4,000 square feet. The home had a two-car garage, situated below Daisy's home, with an elevator which operated between the garage and the upper levels. The basement was completely finished, and it was partitioned into four areas, which included a storage area, laundry room, and furnace room. The residence was situated in Piedmont, Calif., on a tract of land approximately 100 feet wide and 200 feet deep. Daisy belonged to Claremont Country Club and she played golf regularly. She also played bridge frequently at different bridge clubs, and she went out to dinner often. She owned her own car, which she drove until about a year before her death, when she was unable to retain her driver's license because she could not pass her driving test. During the course of the administration of the trust, Daisy went abroad to Europe on three different occasions. Daisy made several personal gifts to relatives at Christmas and on birthdays in amounts varying from $50 to $100. When she died, on December 2, 1961, Daisy had a bank account with cash in the total amount of $7,068.16, and other personal property which she owned included miscellaneous items such as furniture and fixtures valued at $2,000, a 1954 Cadillac valued at $450, and nominal personal effects valued at $10.Page 503

On September 30, 1953, the property transferred to the testamentary trust, pursuant to the decree of distribution of the Probate Court, was as follows:

Cash (in the amount of $10,980.58)

Real property (Daisy's family residence and real estate upon which the residence was situated)

Stock —

Number ofName of corporation Kind of stock shares

Bank of America ................ Capital ................. 534 Central Waxed Paper, Chicago, Ill ................. Capital ............... 11,280 Crown Zellerbach Corp. ......... Common ................. 3,260 Rayonier, Inc. ................. Common ................. 600 Rayonier, Inc. ................. $2.00 Cum. 300 Preferred.

Transamerica Corp .............. Capital ................. 500

The fair market value of the assets in the testamentary trust, as of September 30, 1953, the date of distribution of Andrew's estate and the date on which Daisy elected to have her community property interests pass under his will, was $383,009.38. In other words, the combination of all assets, including the cash, real property, and stocks, transferred to the trust had an aggregate fair market value of $383,009.38, as of September 30, 1953. This total value, as of September 30, 1953, of the community property transferred to the trust was determined by respondent and was set forth in the deficiency notice in the estate tax case, docket No. 6182-65, on page 3 of the statement attached thereto.

Robert was the sole trustee of the testamentary trust from its inception on September 30, 1953, to its termination upon Daisy's death on December 2, 1961.

Under the terms of the trust, as provided in Andrew's will, Robert had broad powers of investment, and broad powers to sell or exchange the assets constituting the principal of the trust. During the course of the administration of the trust, Robert made purchases, sales, or exchanges of trust assets, as follows:

Date Transaction Shares and corporation Amount in dollars

4/27/55 .... Sale ....... 300, Bank of America ..... $11,775.00 9/7/35 ..... Redemption . 300, Rayonier, Inc. ...... 11,250.00 9/23/55 .... Purchase ... 300, Sunray Oil Co. ...... 7,381.66 3/12/56 .... Purchase ... 16, Bank of America ..... 561.68 10/9/56 .... Sale ....... 500, Transamerica ........ 12,625.00 5/20/59 .... Purchase ... 100, Socony-Mobil ........ 4,616.88 5/22/59 .... Purchase ... 100, Sunray-Mid .......... 2,732.50 6/10/69 .... Purchase ... 100, Reading Co. ......... 2,304.90 9/22/59 .... Purchase ... 200, Sperry Rand ......... 4,508.50 12/10/59 ... Sale ....... 200, Reading Co. ......... 3,468.11 12/10/59 ... Sale ....... 300, Rayonier, Inc ....... 7,580.63 5/25/60 .... Purchase ... 500, Coca-Cola ........... 13,625.00 7/11/60 .... Purchase ... (frac.sh.), St. Regis Paper 32.17 12/5/60 .... Sale ....... 500, Coca-Cola ........... 10,829.88 12/27/60 ... Sale ....... (frac.sh.), Rayonier .... 5.60 5/8/61 ..... Purchase ... (frac.sh.), St. Regis Paper 11.99 11/27/61 ... Purchase ... 16, Bank of America ...... 944.00

Page 504

In addition to the sales, exchanges, or acquisitions of securities listed above, there was in July 1960, an exchange of all of the Central Waxed Paper stock held in the trust for shares of St. Regis Paper.

The exchange was made on the basis of eight thousand two hundred and nine ten-thousandths (0.8209) of one share of St. Regis common stock for each share of capital stock of Central. Robert, as trustee, received 12,732 shares of St. Regis common in exchange for all of the shares of Central stock in the trust. The 11,280 shares of stock of Central was one of the principal assets transferred to the trust on September 30, 1953.

Central Waxed Paper was a closely held corporation, incorporated in 1915 under the laws of Illinois. Andrew was one of nine founders of the corporation and its president during its early years; and he was one of five directors. Upon its organization, Andrew became an owner of a one-ninth interest in the corporation. In 1927 or 1928, Western Waxed Paper, a subsidiary of Central located in California, was sold to Crown Zellerbach Corp. In 1928, Andrew resigned from his position in Central, he moved to California, and he became general manager of Western for Crown Zellerbach. However, he did not give up his position on the board of Central, and he remained on the board until 1948, at which time Robert took his place. Robert remained on the board from 1948 until the corporation was acquired by St. Regis in 1960.

During the years before St. Regis acquired the corporation, Central was a paper company operating principally as a converter of various types of flexible packaging papers for several industries. Central purchased rough paper and rough "glassine," a special, almost transparent paper which is often used for breadwraps, which it processed and then used in making paper bags and wrappers. Most of Central's production was sold to makers of bread, biscuits, crackers, and cakes and to meat packers and producers of dairy, cereal, and other food products.

Central's capitalization consisted only of common stock. On August 16, 1952, the date of Andrew's death, there were 10,000 outstanding shares of Central common stock having a par value of $100 per share. The stock was not listed on any stock exchange, and it was not actively traded over-the-counter. Prior to the acquisition of Central by St. Regis Paper Co., the outstanding stock was predominantly owned by the original founders or those who had acquired a beneficial interest in the stock through gifts, inheritance, or bequests. Of the 10,000 shares outstanding on August 16, 1952, 1,128 shares, or one-ninth, were held by Daisy and Andrew as community property. As of August 16, 1952, the Central common stock had a fair market value of $95 per share. On May 28, 1953, between the date of Andrew's death and September 30,Page 5051953, the date of distribution of the trust assets to the trust, there was a 10-for-1 stock split of the common stock. For 1 share, $100 par value, 10 shares, $20 par value, were exchanged. Therefore, as of May 28, 1953, there were outstanding 100,000 shares of $20 par value common stock. Daisy and Andrew, or his estate, received 11,280 shares of the new $20 par value common in exchange for their 1,128 shares of $100 par value common.

On September 30, 1953, the date on which the 11,280 shares of Central were distributed to the trust pursuant to the decree of the Probate Court, the fair market value of one share of $20 par value stock was $15 per share.

Central's fiscal year ended on December 31. For the fiscal years 1951, 1952, and 1953, Central's capitalization was as follows:

Capitalization 1951 1952 1953

Debt-note payable ............ 0 $530,833 $390,000

Capital and surplus: Common .................... $1,000,000 1,000,000 2,000,000 Earned surplus ............ 1,323,607 1,450,401 649,393 ------------ ----------- ---------- Total capital and surplus (net worth) .................. 2,323,607 2,450,401 2,649,393

Book value, per share (10,000 shares, 1951, 1952; 100,000 shares, 1953) ................ 232 245 26.49

Although there is no evidence of trading in Central shares during the period close to September 30, 1953, there were advertised bids or offers for Central stock at that time. An offeror is not bound by his advertised bid upon and indicated acceptance of the offer by the offeree. The offeror may negotiate with the offeree who has indicated that he would accept the advertised bid, or who has indicated an interest in the bid. However, the acceptance of an advertised bid which has been made by the offeror in good faith will result in a transaction at the advertised price. In the National Stock Summary, at page 382 of the October 1953 issue, and at page 382 of the April 1954 issue, the advertised bids for Central common stock by various brokers and dealers were as follows:

Date Offeror Number of shares Bid price

4/29/53 ..... Swift-Henke (Chicago, Ill.) .. 100 ............... $95.00 7/29/53 ..... Swift-Henke (N.Y., N.Y.) ..... 100 ............... 15.00¹9/28/53 ..... Cohn Co .................... Not indicated ..... 15.50 1/28/54 ..... Swift-Henke .................. Not indicated ..... 15.00 1/29/54 ..... S. Wineberg (N.Y.) ........... Not indicated ..... 15.50

As of September 30, 1953, the 11,280 shares of Central distributed to the trust constituted one-ninth of the outstanding shares of Central. Those shares held in trust as of that date represented a substantial block of stock. There was no ready market for the sale of Central stock.Page 506

If the trustee wished to sell the Central stock, he would have had to sell it at a substantial discount from its intrinsic worth.

Robert, as trustee, did not desire to sell the Central stock during his administration of the trust because he would have been forced to sell it at a discount from what he believed it was worth. Also, he did not want to incur a resulting capital gains tax. Robert hoped that a firm whose stock was listed on a stock exchange, or traded over the counter, would acquire Central in a share-for-share exchange, in a transaction in which there would not be any recognition of gain, so that he would not have to incur a capital gains tax and the trust would acquire a stock which was readily marketable without a blockage problem.

Central had a history of high earnings per share prior to September 30, 1953. In fiscal 1952, for example, Central had earnings per share of $22.68, and on the basis of the fair market value of $95 per share, as of August 16, 1952, the ratio of fair market value to earnings on that date was approximately 4.2 to 1. The high earnings of Central during the period prior to September 30, 1953, were due in part to the fact that there was no expense for research and development, and because there was very little sales expense since the sales department consisted of one employee. In addition to having high earnings per share in the period prior to September 30, 1953, the percentage of earnings paid in dividends was substantial. For its fiscal years 1948 through 1953, Central's earnings and dividends were as follows, and the dividends received by Daisy and Andrew, on the basis of 1,128 shares, and by the trust in 1953 on the basis of 11,280 shares, were as follows:

CENTRAL WAXED PAPER, 1948 THROUGH 1953

Earnings Total Dividends Dividends Total Dividends Year Earnings per dividends as percent per outstanding received share of earnings share shares by Andrew, and the trust

1948 .. $359,785 $35.98 $150,000 42 $15.00 10,000 $16,920 1949 .. 319,674 31.97 100,000 31 10.00 10,000 11,280 1950 .. 321,420 32.14 80,000 25 8.00 10,000 9,024 1951 .. 301,125 30.11 80,000 27 8.00 10,000 9,024 1952 .. 226,794 22.68 100,000 44 10.00 10,000 11,280 1953 .. 313,991 3.14 115,000 37 1.15 100,000 12,972

The 11,280 shares of Central, received on the date of the distribution of Andrew's estate, were retained by the trust until 1960 when the shares were exchanged for shares of common stock of St. Regis Paper Co. During the course of the administration of the trust there were two stock dividends on the Central stock. A stock dividend of 25 percent, or 1 share for every 4 shares, occurred on January 29, 1954. As a result, the number of shares of Central held in the trust increased from 11,280 to 14,100. On June 29, 1956, there was a second stock dividendPage 507of 10 percent, or 1 share for every 10 shares. As a result, the shares of Central held by the trust increased from 14,100 to 15,510.

In July 1960, after the exchange of Central stock for St. Regis stock, the trust held 12,732 shares of St. Regis common stock, $5 par value.

From September 30, 1953, until the acquisition of Central by St. Regis, Central's total earnings per year generally increased and it continued to distribute a substantial percentage of its earnings as dividends. The dividend income from the Central stock received by the trust also increased during that period. The factors reflected in the schedule above for the years 1948 through 1953, and particularly the dividend income received by the trust from the Central and St. Regis stocks, are set forth in the following schedule for the years 1954 through 1961:

CENTRAL WAXED PAPER (ALSO ST. REGIS), 1954 THROUGH 1961

Earnings Total Year Earnings per share dividends

1954 ........... $275,174 $2.20 $125,000 1955 ........... 257,583 2.06 103,750 1956 ........... 307,217 2.24 127,500 1957 ........... 303,404 2.21 137,500 1958 ........... 355,691 2.58 165,000 1959 ........... 436,437 3.18 165,000 1960 ........... ________ ________ ________ 1961 ........... ________ ________ ________

Dividends Total Trust as percent Dividends outstanding dividend Year of per share shares income, CWP earnings or St. Regis

1954 .......... 45 $1.00 125,000¹$14,100.00 1955 .......... 44 .91 125,000 12,831.00 1956 .......... 41.5 .80 125,000 (on 14,100 sh.) .20 137,500²14,382.00 (on 15,510 sh.) 1957 .......... 45 1.00 137,500 15,510.00 1958 .......... 47 1.20 137,500 18,612.00 1959 .......... 37.7 1.20 137,500 18,612.00 1960 .......... 30,399.60 1961 .......... 18,093.95

As set forth hereinabove, shares of stock in several corporations were among the assets transferred to the testamentary trust on September 30, 1953. Had these securities been held during the years 1948 through 1953, inclusive, prior to the creation of the trust, the dividends which would have been received, after giving effect to increases in the number of shares due to stock dividends or stock splits which occurred during the years 1948 through 1953, were as follows:

Corporation Number of 1948 1949 1950 shares

Crown Zellerbach ............ 3,260 $3,260 $3,260.00 $3,586 Rayonier (common) ........... 600 375 600.00 750 Rayonier (preferred) ........ 300 600 600.00 600 Central Waxed Paper ......... 11,280 16,920 11,280.00 9,024 Transamerica Corp. .......... 500 400 400.00 500 Bank of America ............. 534 555 667.50 801 ------ --------- ------ Total .................................. 22,110 16,807.50 15,261

Corporation 1951 1952 1953

Crown Zellerbach ........... $5,053.00 $4,890.00 $5,379.00 Rayonier (common) .......... 900.00 900.00 900.00 Rayonier (preferred) ....... 600.00 600.00 600.00 Central Waxed Paper ........ 9,024.00 11,280.00 12,972.00 Transamerica Corp .......... 1,410.00 1,070.00 825.00 Bank of America ............ 854.40 854.40 854.40 --------- --------- --------- Total ................... 17,841.40 19,594.40 21,530.40

Page 508

The above schedule reflects increases in dividends due to either increases in rates of dividends paid or increases in shares due to stock splits, or both.

For the calendar year 1953, the year in which the trust assets were transferred to the trust, the dividend income on the above stocks, if they had been held during the entire year, would have been $21,530.40. The average dividend income of the above stocks, transferred to the trust, if held during the 6-year period, 1948 through 1953, would be $18,857.45 per year.

Other assets transferred to the testamentary trust on September 30, 1953, consisted of cash in the amount of $10,980.58, and real property, the Christ family residence and the land upon which it was located. The value of the real property as of August 16, 1952, was $50,000, which amount was reported in Andrew's estate tax return as the fair market value on that date. The fair market value of the real property on September 30, 1953, was $50,000.

As of September 30, 1953, the annual fair rental value of the real property transferred to the trust, having a fair market value of $50,000, was $1,750. The fair rental value of the real property is determined here by applying to the fair market value of the property the interest factor of 3 1/2 percent in table 1 of section 20.2031-7(f), Estate Tax Regs. (providing for the valuation of a life estate). On the basis of the same table, the projected annual income from the $10,980.58 distributed to the trust in the form of cash, was $384.32.

The sum of the dividend income which was paid in 1953 on the shares of stock which were distributed to the trust on September 30, 1953, and which would have been paid to the trust in 1953 if the trust had been in existence and had owned the shares throughout 1953 ($21,530.40), the fair rental value of the real property computed on the basis of the interest factor of 3 1/2 percent provided in table 1 of section 20.2031-7(f) ($1,750), and the yield on $10,980.58, also computed on the basis of the 3 1/2-percent interest factor ($384.32), results in a total annual income of $23,664.72. The sum of the average annual dividend income from the shares of stock distributed to the trust on September 30, 1953, and which would have been paid to the trust in the years 1948 through 1953, if the trust had been in existence and had owned those shares throughout that period ($18,857.45), the fair rental value of the real property ($1,750), and the yield from the $10,980.58 transferred to the trust ($384.32), results in a total annual income of $20,991.77.

If the amount of $23,664.72 (based on dividends paid in 1953 on the securities transferred to the trust) could have been projected as the annual income of the trust, then the projected percentage yield of thePage 509trust would have been 6.18 percent, where the projected income is expressed as a percentage of the fair market value of the trust assets as of September 30, 1953, $383,009.38. If the amount of $20,991.77 (based on the average annual dividends paid on the securities transferred to the trust during the years 1948 through 1953) could have been projected as the annual income of the trust, then the projected percentage yield of the trust would have been 5.48 percent, where the projected income is expressed as a percentage of the fair market value of the trust assets as of September 30, 1953. A yield of 6.18 percent based on annual income of $23,664.72 or a yield of 5.48 percent based on annual income of $20,991.77 could not have been reasonably projected or estimated on September 30, 1953, as the annual yield of the trust. The trustee had broad powers to sell, exchange, or otherwise dispose of the trust assets, and there could be no reasonable assurance on September 30, 1953, that the trustee would not sell, exchange, or otherwise dispose of any property of the trust, including specifically the shares of stock in the several corporations distributed to the trust on September 30, 1953, and upon which petitioner's computation of the projected yield was based. Also, petitioner's projected yield was based upon projected gross income, and did not take into account expenses and charges which would be and which were incurred in the administration of the trust.

For its taxable year ended December 31, 1957, the distributable net income of the trust was $26,618.44. Under the terms of the trust, as provided in Andrew's will, the entire net income of the trust was currently distributable to Daisy. Of the distributable net income of $26,618.44, the amount of $15,513.77 was deducted from trust income by the trustee as distributions to beneficiaries, and the $15,513.77 was reported as income in Daisy's income tax return for her taxable year ended December 31, 1957. The balance of the $26,618.44, or $11,104.67, was reported as income taxable to the trust. After trust deductions, the taxable income of the trust reported on the fiduciary return for 1957 was $10,954.67 and a tax in the amount of $2,564.58 was paid thereon. The district director of internal revenue in San Francisco owed income tax refunds in the total amount of $7,768.29 to the Andrew Christ testamentary trust for the taxable years ended December 31, 1957, 1958, and 1959. Included in this total amount was the tax of $2,564.58 paid by the trust for its taxable year 1957. As of the date of Daisy's death, December 2, 1961, these refunds had not been made to the trust. Nor had the refunds been made as of the dates of the trial of these cases.

In an explanation entitled "Statement Regarding Distributed Income" attached to the fiduciary returns for the taxable years 1957, 1958, and 1959, the reasons for including a portion of the distributablePage 510net income in the income taxable to the trust were set forth. A similar explanation was included in Daisy's income tax returns for those years. The explanation, as set forth in the fiduciary returns for the years 1957, 1958, and 1959, is, in pertinent part, as follows:

The entire income of the trust is distributable currently to Mrs. Christ. That portion of the income which is attributable to the property which she transferred to the trust and from which she has the benefit of the life estate, is deducted by the trust and reported by Mrs. Christ. That portion of the income which is attributable to the property transferred by decedent [Andrew] to the trust is the life income which Mrs. Christ purchased with her own transfer, and is in the nature of a return of capital to her. Since she is not required to report this latter amount as income, the trust is not taking a deduction for this amount, although it is distributed to her, and the trust is paying income taxes thereon.

Daisy, in fact, received all of the distributable net income of the trust for 1957, which amounted to $26,618.44.

For its taxable year ended December 31, 1958, the distributable net income of the trust was $26,964.53. Of the distributable net income, the amount of $15,715.48 was reported as income of Daisy in her income tax return for 1958, and was deducted as income distributed to beneficiaries in the fiduciary return of the trust. The balance of distributable net income in the amount of $11,249.05 was reported in the fiduciary return as income taxable to the trust, and after certain deductions, a tax of $2,613.68 was paid on taxable income of the trust reported, which amounted to $11,099.05. The tax paid by the trust for 1958, $2,613.68, is part of the $7,768.29 refund in income taxes owed to the trust by the district director of internal revenue in San Francisco. Daisy, in fact, received all of the distributable net income of the trust for 1958, amounting to $26,964.53.

For its taxable year ended December 31, 1959, the distributable net income of the trust was $28,280.08. Capital gains, amounting to $2,056.12, were reported in the fiduciary return, of which $1,206.80 was reported as capital gains distributable to Daisy for 1959, and the balance of $849.32 was reported as capital gains of the trust. The amount of $17,096.97 was deducted from the trust as a deduction for distributions to beneficiaries and this amount was reported by Daisy in her income tax return for 1959. The balance of the distributable net income, excluding capital gains, $11,183.11, was reported as income taxable to the trust. The distributable net income reported as income taxable to the trust ($11,183.11) and the capital gains reported as income of the trust ($849.32) totaled $12,032.43. After certain trust deductions, taxable income of the trust for 1959 totaled $11,457.77, and a tax of $2,735.64 was paid thereon. The tax paid for 1959 is partPage 511of the refund of $7,768.20 owed to the trust by the district director. All of the distributable net income of the trust for 1959, amounting to $28,280.08, was distributed to Daisy.

On December 9, 1959, Daisy and Robert entered into an agreement with respect to the trust income which provided as follows:

AGREEMENT

Agreement made this 9th day of December, 1959, between DAISY F. CHRIST, herein designated as Seller, and ROBERT JOHNSON CHRIST, herein designated as Purchaser.

RECITALS

Seller is the income beneficiary under that certain trust created September 30, 1953, pursuant to order of the Superior Court of the State of California in and for the County of Alameda, decreeing distribution of the estate of Andrew Christ, deceased. The corpus of said trust is composed of two parts as follows: A portion thereof, (hereinafter referred to as Portion 1) representing an undivided 13211698/31984298 interest in the corpus, was transferred from the estate of Andrew Christ, deceased, pursuant to the dispositive provisions of his Last Will and Testament; the balance thereof (hereinafter referred to as Portion 2), representing an undivided 18772600/31984298 interest in the corpus, was transferred to the trust by Seller pursuant to her election to take under the Will of the said Andrew Christ, deceased. Seller, in order to obtain a more fixed and determinative income for her retirement, desires to sell to Purchaser all of her right title and interest in and to the income of Portion 2 of said trust corpus.

IT IS THEREFORE AGREED

(1) Seller hereby sells, transfers and assigns and Purchaser hereby purchases all of Seller's right, title and interest in and to the income from Portion 2 of the trust estate.

(2) In consideration of the foregoing sale, transfer and assignment of Seller's income rights in and to Portion 2 of the trust estate, Purchaser hereby promises and agrees to pay to Seller during the term of her remaining natural life a nonrefundable annuity, the present value of which is $104,056.00, being the commuted value of the life estate herein transferred, all values being determined in accordance with applicable actuarial tables published by the Internal Revenue Service. Said annuity shall be the sum of $22,979.11 per year $1915.00/month payable in such periodic installments as Seller may from time to time designate, subject only to the limitation that the minimum installment period shall be the calendar month.

(3) Said annuity and the right of Seller as annuitant hereunder shall be non-assignable.

(4) This Agreement shall be binding upon the representatives of Purchaser's estate and upon all persons having or claiming an interest therein.

As set forth hereinabove, a spendthrift clause was provided in the trust instrument, which was contained within paragraph Fourth of Andrew's will. Paragraph Fourth, subparagraph C, subsection 6, provides that the income beneficiary is restrained from selling, transferring,Page 512assigning, or otherwise disposing of her income interest before said income shall come into the beneficiary's possession under the terms of the trust. The agreement of December 9, 1959, wherein Daisy agreed to transfer her life interest in the portion of the trust attributable to her share of the community property distributed to the trust in exchange for a fixed amount, lifetime annuity, was executed in violation of the spendthrift provision.

Daisy was 80 years old on January 19, 1959, approximately 11 months before she executed the agreement with her son. At this time, she was suffering from anemia. In 1959, she fell down a hill while playing golf at the country club, and she sustained injuries which required her to be hospitalized. About a year before her death, Daisy lost her driver's license because she could not pass her driving test. Also, she was failing mentally in the last 7 months of her life. Daisy died on December 2, 1961, less than 2 years after her execution of the agreement of December 9, 1959. At the date of her death, she was 82 years 10 months 14 days old.

In 1960, Robert made substantially all of the annuity payments called for by the agreement executed on December 9, 1959, out of trust income. During her taxable year 1960, Daisy received $22,979.11 as annuity payments made in accordance with the agreement. Part of the annuity payments received in 1960, totaling $22,150, consisted of 11 checks drawn on the trust account of the testamentary trust at American Trust Co., Berkeley, Calif. The drawer of the 11 checks was Robert, acting as trustee. Ten of the checks were payable in the amount of $1,915 each and one was for the amount of $3,000. Also, in 1960, Daisy received a payment of $829.11 by check dated December 15, 1960, which was drawn by Robert in his individual capacity on his personal account at the Bank of America, Oakland, Calif., San Pablo Avenue Branch. The total annuity payments received by Daisy in 1960 amounted to $22,979.11, the same as the amount called for in the agreement.

In 1961, Daisy received 10 checks in monthly installments in the amount of $1,915 each. Daisy died in December 1961 and she did not receive annuity payments for the months of November and December. The 10 payments received by Daisy in 1961 amounted to a total of $19,150. Each of the 10 checks was drawn by Robert in his individual capacity on his personal account at the Bank of America in Oakland.

When Robert entered into the agreement with his mother on December 9, 1959, he intended to pay the annuity out of his own income and also out of the income interest in the trust which Daisy assignedPage 513to him under the agreement. Robert could not pay all of the annuity out of his own annual income and he intended to use trust income to pay part or all of the annuity required under the agreement.

For its taxable year ended December 31, 1960, the testamentary trust had distributable net income in the amount of $48,777.51. All of the distributable net income was reported in the fiduciary return for the trust in 1960 as income required to be distributed currently and no tax was paid by the trust for that year. Of the distributable net income, the amount of $28,629.07 was the portion of income attributable to Daisy's share of community property (58.693 percent) transferred to the trust. On the basis of the 1959 agreement between Daisy and Robert, under which Daisy transferred her life income interest in her share of community property transferred to the trust in exchange for a fixed, private, lifetime annuity, Robert reported the amount of $28,629.07 as his distributive share of trust income in his income tax return for his taxable year 1960. The balance of the distributable net income of the trust for 1960, the amount of $20,148.44, was the portion of trust income attributable to Andrew's share of community property (41.307 percent) transferred to the trust. Daisy did not transfer or assign her life income interest in the portion of the trust attributable to Andrew's share of community property transferred to the trust, and, therefore, Daisy was entitled to the share of distributable net income resulting from that 41.307 percent of the trust. In her income tax return for 1960, Daisy's adjusted gross income as reported in the return consisted of her alleged distributive share of trust income ($20,148.44) and income from the private annuity ($11,512.53), less an amount for amortization of the cost of acquiring the income interest in the trust attributable to Andrew's share of the community property transferred to the trust ($8,160.03). The total adjusted gross income reported for Daisy's taxable year 1960 was the amount of $23,500.94. Daisy received annuity payments in 1960 in the total amount of $22,979.11, and the amount of the annuity included in adjusted gross income of Daisy for 1960 was computed in the following manner: On December 9, 1959, the date of execution of the agreement, Daisy was 80 years, 10 months, 21 days old. Petitioner determined the value of Daisy's life estate as of this date in the portion of the trust attributable to her share of community property transferred to the trust. Petitioner applied the factor for a life estate provided in table 1 of section 25.2512-5(f), Gift Tax Regs., to the fair market value as of December 9, 1959, of the portion of the trust corpus attributable to the transfer of Daisy's share of community property to the trust. The fairPage 514market value of the portion of the trust on December 9, 1959, as determined by petitioner was $656,546.11. Although the number of years nearest to Daisy's actual age on December 9, 1959, was 81 years, petitioner applied the factor for a life estate for a person of age 80, as provided in section 25.2512-5(f), Gift Tax Regs., which is 0.16759 to the amount of $656,546.11, and the resulting value of the life income interest in 58.693 percent of the trust was determined to be the amount of $110,030.57. The amount of $110,030.57 was considered the investment of Daisy in the alleged annuity contract. The expected return from the annuity was based on an annual income of $22,979.11 and a life expectancy of 9.6 years. This life expectancy of 9.6 years times the annual annuity income of $22,979.11 results in an expected return of $220,599.56. As reflected in Daisy's 1960 return, petitioner computed the amount of the annuity to be reported in adjusted gross income as follows:

Investment in contract ....................... $110,030.57 Expected return .............................. 220,599.46 =========== Percentage of income to be excluded .......... 49.9% =========== Amount received, 1960 ........................ $22,979.11 Amount excludable ............................ 11,466.58 ----------- Taxable portion .......................... 11,512.53

The amortization deduction of $8,160.03 reported in Daisy's return for 1960 for the amortization of Daisy's life estate in the portion of the trust attributable to Andrew's share of community property was computed as follows: In the "Schedule of Amortization" attached to Daisy's 1960 income tax return, the life estate in the portion of the trust attributable to Andrew's share of community property was reported as being acquired in 1952, with a "cost or other basis" in the amount of $107,712.36. On the basis of a life expectancy of Daisy as of 1952 of 13.2 years and using a straight-line method of amortization, the annual amortization was computed and reported as $8,160.03. In the deficiency notice for Daisy's taxable years 1960 and 1961, docket No. 1342-64, respondent disallowed the amortization deduction, and refusing to recognize the 1959 agreement between Robert and Daisy, respondent held that the entire net income of the trust, for 1960, in the amount of $48,777.51, was includable in Daisy's gross income for her taxable year 1960.

For its taxable year 1961, the trust had distributable net income in the amount of $27,048.76. Of this amount, the amount of $17,844.48 was reported in the fiduciary return as income required to be distributed currently to the beneficiary, Robert, and the balance of thePage 515$27,048.76, the amount of $9,204.28, was reported as income required to be distributed currently to the beneficiary, Daisy. The trust paid no tax for its taxable year 1961. Daisy died in 1961, and an income tax return for her taxable year 1961 was filed on her behalf by Robert, acting as the executor of her estate. In the return, Daisy's alleged distributive share of the trust income (on the basis of the 1959 agreement), $9,204.28, and annuity income in the amount of $10,553.56, were reported in her gross income, while an amortization deduction of $7,480.03 for amortization of her life estate in Andrew's portion of the community property transferred to the trust was also reported. Of the annual amortization of the life estate of $8,160.03, computed as shown hereinabove, only a portion, $7,480.03, was reported as a deduction reflecting the termination of the life estate prior to the end of her taxable year. The annuity income in the amount of $10,553.56 reported in Daisy's return for 1961 was computed by petitioner as follows:

Investment in contract ....................... $110,030.57 Expected return .............................. 220,599.46 =========== Percentage of income to be excluded .......... 49.9% =========== Amount received, 1961 ........................ $21,065.00 Amount excludable ............................ 10,511.44 ----------- Taxable portion .......................... 10,553.56

In the deficiency notice for Daisy's taxable year 1961, docket No. 1342-64, respondent disallowed the amortization deduction claimed, and, refusing to recognize the 1959 annuity agreement between Daisy and Robert, respondent held that all of the distributable net income of the trust for 1961 in the amount of $27,048.76 was includable in Daisy's gross income for her taxable year 1961.

Daisy died on December 2, 1961. She died suddenly from a heart attack while eating dinner alone in her home.

An estate tax return for the estate of Daisy was due on March 2, 1963, 15 months after the date of her death. A delinquent return was filed on November 22, 1963, by Robert, acting as executor of Daisy's estate. The return was not filed within the time prescribed by law, and respondent made an addition to tax under section 6651(a) of the Code, which amounted to 25 percent of the estate tax deficiency determined in docket No. 6182-65. In the delinquent return filed on November 22, 1963, a gross estate of $7,553.16 was reported and no estate tax was paid. With respect to Daisy's estate, in docket No. 6182-65, respondent determined a deficiency in estate taxes of $132,786.70 and made an addition to tax under section 6651(a) of the Code in the amount of $33,196.68.Page 516

Respondent's computation of the estate tax deficiency and the addition to tax under section 6651(a), as reflected in his deficiency notice, is as follows:

Trust assets as of date of Daisy's death:Shares

208 Sperry Rand at 22.875 ................................ $4,758.00

100 Socony Mobil at 48.375 ............................... 4,837.50 415 Sunray Oil at 27.9375 ................................ 11,594.06 12,988 St. Regis Paper at 37.6875 ........................... 489,485.25 1,320 Rayonier at 20.25 .................................... 26,730.00 278 Bank of America at 69.0625 ........................... 19,199.37 4,890 Crown Zellerbach at 66.4375 .......................... 324,879.37 ------------ Total value of stock ......................................... 881,483.55 Contribution of Daisy Christ, $881,483.55 X 0.58694 .......... 517,377.95 Real estate valued at $70,000 X 0.58694 ...................... 41,085.80 Principal cash $5,804.14 X 0.58694 ........................... 3,406.68 Federal income tax refunds 1957, 1958, 1959, 100% ............ 7,768.29 Income owed but not distributed to decedent .................. 20,446.66 ------------ Decedent's total interest in trust, 12/2/61 .................. 590,085.38 Less: Consideration received — value of life estate in husband's contribution to the testamentary trust computed as of date of distribution. [$383,000 — value of corpus at 9/30/53 X 0.413 — husband's contribution to the corpus X 0.21752 — decedent's life factor, equals $34,407.10.] ............ 34,407.10 Value of the portion of trust assets, as of 12/2/61, includable in Daisy's gross estate ........................ 555,678.28 Other miscellaneous property: Daisy's household furnishings .......................... 2,000.00 Daisy's bank account, other assets ..................... 7,553.16 ------------ Daisy's gross estate, value as of 12/2/61 .................... 565,231.44 Debts and deductions ............................. $7,553.16 Specific exemption ............................... 60,000.00 --------- Total ........................................................ 67,553.16 ------------ Taxable estate ............................................... 487,678.28 Gross estate tax ............................................. 144,957.05 Credits (gift tax, prior transfers) .......................... 12,170.35 ------------ Net estate tax ............................................... 132,786.70 Delinquency penalty 25 percent — Code section 6651(a) .. 33,196.68

The total fair market value of the stock in the testamentary trust as of Daisy's death was $881,483.55. The fair market value of the family residence, 60 Bellevue Avenue, Piedmont, Calif., an asset ofPage 517the trust, was $70,000 as of Daisy's death. Trust assets as of Daisy's death included cash in the principal amount of $5,804.14. The total fair market value as of December 2, 1961, of the assets of the testamentary trust attributable to the transfer of Daisy's share of community property transferred to the trust was $561,860.86, which amount is equivalent to 58.693 percent of $957,287.69, the fair market value as of December 2, 1961, of the assets of the trust consisting of stocks, real property, and cash.

As stated hereinabove, the district director of internal revenue in San Francisco owed income tax refunds in the total amount of $7,768.20 to the testamentary trust for the trust's taxable years 1957, 1958, and 1959. The refunds had not been paid to the trust as of the date of Daisy's death. The testamentary trust had income in the amount of $20,446.66, which had accrued prior to Daisy's death, and which had not been distributed to Daisy as of the date of her death.

On the basis of table 1, section 20.2031-7(f), Estate Tax Regs., the value of the life estate received by Daisy in the portion of the trust attributable to Andrew's share of community property (41.307 percent), was $34,413.77, as of September 30, 1953, the date Daisy elected to have her share of the community property pass under Andrew's will. Daisy retained a life estate in her share of the community property transferred to the trust (58.693 percent). The value of the remainder interest transferred to the trust by Daisy, as of September 30, 1953, valued on the basis of table 1 of section 20.2031-7(f), Estate Tax Regs., was $175,901.27. The computation, on the basis of the Commissioner's tables of the value, as of September 30, 1953, of Daisy's life interest in the portion of the trust attributable to Andrew's share of community property transferred in trust, and of the value of the remainder in Daisy's share of the community property transferred to the trust, is as follows:

Life estate (41.307%):

Net value of trust corpus, 9/30/53 ............. $383,009.38 Andrew's share of community property in trust .. X 41.307% ------------- 158,209.68 Life estate factor, table 1, age 75 ............ X .21752 ------------- Value of life estate in Andrew's portion (41.307%) ............................. 34,413.77 ============= Remainder interest transferred (58.693%):

Net value of trust corpus, 9/30/53 ............. 383,009.38 Daisy's share of community property in trust ... X 58.693% ------------- 224,799.70

Page 518

Life estate factor, table 1, age 75 ............ X .21752 ------------- Value of life estate in Daisy's portion (58.693%), retained by Daisy .................. 48,898.43 ============= Value of remainder:

Value of Daisy's share of community property .. 224,799.70

Less: Value of life estate .................... 48,898.43 ------------- Remainder ..................................... 175,901.27

The factors in table 1 of section 20.2031-7(f) of the regulations are computed upon the basis of the Makehamized mortality table appearing as table 38 of United States Life Tables and Actuarial Tables 1939-41, published by the U.S. Department of Commerce, Bureau of the Census, and interest at the rate of 3 1/2 percent a year, compounded annually. Table 38 is based upon life expectancies of U.S. total whites: 1939-41, reflected in table 4 of the tables. In table 4, Life Table for Total Whites in the United States: 1939-41, of United States Life Tables and Actuarial Tables 1939-41, the average future lifetime of a person 75 years old (that is, the average number of years of life remaining at the beginning of the year of age 75) is 7.55 years. Daisy was 74 years 8 months 12 days on September 30, 1953 when she elected to have her share of community property distributed to the trust under Andrew's will.

The estate tax return for the estate of Daisy was filed on November 22, 1963. It was not filed within the time prescribed by statute. Petitioner was advised by his attorneys that no estate tax return was due, and petitioner relied upon that advice. The advice of petitioner's attorneys, rendered in good faith, was to the effect that no estate tax return was required because Daisy's gross estate as determined by petitioner's attorneys, was less than the $60,000 exemption.

The following shows the determinations of the respondent remaining in issue in these cases.

Docket Nos. 95357 and 1342-64; IncomeTax Liabilities for1957, 1958, 1959, 1960, and 1961

The respondent determined that, in the income tax return of Daisy F. Christ for each of the 5 taxable years 1957 through 1961, there was omitted from Mrs. Christ's taxable income the full amount of the income of the testamentary trust which was taxable to her. The respondent determined the amount of the trust income and the unreported amount thereof, taxable to Mrs. Christ, as follows:Page 519

NET INCOME OF ANDREW CHRIST TESTAMENTARY TRUST

Docket No. 95357 1957 1958 1959

Net income ........................... $26,618.44 $26,964.53 $27,073.28 Reported, D. F. Christ ............... 15,513.77 15,715.48 16,493.57 ---------- ---------- ---------- Unreported income taxable to D. F. Christ ............................. 11,104.67 11,249.05 10,579.71

Docket No. 1342-64 1960 1961

Net income from trust .......................... $48,777.51 $27,048.76 Trust income reported, D. F. Christ ............ 20,148.44 9,204.28 ---------- ---------- Unreported income determined includable in income of D. F. Christ ........................ 28,629.07 17,844.48 Amortization deductions disallowed ............. 8,160.03 7,480.03 ---------- ---------- Total unallowable deductions and additional income ....................................... 36,789.10 25,324.51 Annuity income reported, eliminated from income by respondent ................................ 11,512.53 10,553.56 Dividend exclusion allowed ..................... 50.00 ----------- ---------- Total income excluded under respondent's adjustments .................................. 11,562.53 10,553.56 Net additions after adjustments ................ 25,226.57 14,770.95 Income reported in return, D. F. Christ ........ 19,245.54 9,551.61 ----------- ---------- Taxable income, as adjusted .................... 44,472.11 24,322.56

Docket No. 6182-65; Estate Tax Liability

The respondent determined that Daisy's transfer of her share of the community property to the testamentary trust was a transfer of property with a retained life estate which was includable in her gross estate. He determined that the value of the property in the trust attributable to the transfer of decedent's share of the community to the trust, valued as of the date of death, less the value of the consideration received in exchange for the property transferred, valued at the date of the exchange, was the amount includable in Daisy's estate. Respondent's determination that other miscellaneous property (relating to furniture and fixtures owned by Daisy) in the amount of $2,000 was includable in her gross estate is not in issue. Respondent's adjustments with respect to the estate tax case, as set forth hereinabove, are summarized as follows:

DOCKET NO. 6182-65: RESPONDENT'S COMPUTATION OF ADDITIONAL AMOUNTS INCLUDABLE IN DAISY'S GROSS ESTATE

Value, date ofDecedent's property interests indeath,12/2/61trust at death:

Stock in trust ($881,483.55 X 58.694%) ............ $517,377.95 Real property in trust ($70,000 X 58.694%) ................ 41,085.80 Principal cash in trust ($5,804.14 X 58.694%) .............. 3,406.68 Income tax refunds (1957 — 59) ....................... 7,768.29 Trust income owed but not distributed to decedent ............ 20,446.66 ----------- Decedent's total interest in trust 12/2/61 ................... 590,085.38

Page 520

DOCKET NO. 6182-65: RESPONDENT'S COMPUTATION OF ADDITIONAL AMOUNTS INCLUDABLE IN DAISY'S GROSS ESTATE — Continued

Value, date ofDecedent's property interests in trustdeath, 12/2/61at death: — Continued

Less: Consideration received — value of life estate in husband's contribution to the testamentary trust computed as of date of distribution. [$383,000 — value of corpus at 9/30/53 X .413 husband's contribution to the corpus X .21752, decedent's life factor, equals $34,407.10] ......................... 34,407.10 Value of trust property includable in gross estate ..................................... 555,678.28 ------------- Other miscellaneous property ................ 2,000.00 ------------- Total additional amounts includable ......... 557,678.28

The net income of the testamentary trust for the years 1957, 1958, 1959, 1960, and 1961 was $26,618.44, $26,964.53, $27,073.28, $48,777.51, and $27,048.76, respectively. All of the net income of the trust for the years 1957 through 1961 was currently distributable to Daisy under the terms of the trust and those amounts were includable in Daisy's gross income in her respective taxable years.

The annuity agreement executed in 1959 was a sham and it is not recognized for tax purposes. The income from the annuity reported in Daisy's income tax returns for the years 1960 and 1961 in the respective amounts of $11,512.53 and $10,553.56 is eliminated and it is not recognized.

Amortization deductions for the cost of acquiring a life interest in the portion of the trust attributable to Andrew's share of community property transferred to the trust (41.307 percent) are allowed. The cost of the 41.307-percent life interest was $34,413.77 and the expected useful life of the interest at the date of acquisition was 7.55 years, and Daisy is entitled to annual amortization deductions of $4,558.12 for the years 1957 through 1960. The expected useful life of the property interest, which commenced on September 30, 1953, ended during 1961, and Daisy was entitled to amortization deductions for only a portion of 1961. The allowable amortization deduction for 1961 is the amount of $1,594.34, computed by applying 0.35 (the amount of the expected useful life remaining in 1961) to the annual amortization allowable.

With respect to the estate tax case, Daisy's transfer of her share of the community property to the testamentary trust was a transfer of property for less than adequate and full consideration in money or money's worth, under which the decedent retained for her life the right to the income from the property, and the 58.693 percent of the corpus of the trust which was attributable to Daisy's transfer in trust, valued as of the date of her death, less the consideration received,Page 521valued as of the date the property interests were exchanged, is includable in Daisy's gross estate. Respondent's determination of the value of the trust assets and other property of the decedent as of the date of her death, December 2, 1961, is sustained. Respondent's determination that 58.694 percent of the trust assets (less the value of the consideration received) is includable in Daisy's gross estate is in error, because the parties have stipulated that 58.693 percent of the trust assets, not 58.694 percent, is the portion of the trust corpus attributable to Daisy's transfer of her share of the community property to the trust. The value on December 2, 1961, of the trust corpus attributable to Daisy's transfer of community property to the trust was $561,860.86.

The consideration received in exchange for Daisy's transfer consisted of a life interest in the 41.307 percent of the trust attributable to Andrew's share of the community transferred in trust, and other consideration which had accrued from Andrew's share of the community between the date of his death, April 16, 1952, and the date of the distribution of the community property to the trust pursuant to the decree of the Probate Court, September 30, 1953, and which Daisy would not otherwise have received if she had not elected to act in accordance with her husband's will. The value on September 30, 1953, of the life interest in 41.307 percent of the trust was $34,413.77. The value of the other property which Daisy would not have otherwise received if she had not made her election shall be computed and stipulated by the parties under Rule 50.

ULTIMATE FINDINGS OF FACT

1. Daisy's election to accept the provisions of her husband's will, whereby she agreed to transfer her share of the community property to the testamentary trust in return for a life estate in the trust was a transaction which constituted a purchase of a life interest in 41.307 percent of the trust, representing Andrew's portion of the community property transferred to the trust.

2. The effective date of Daisy's election was September 30, 1953, approximately 18 months after Andrew's death on April 16, 1952. By her election, in addition to receiving a life interest in the trust as of September 30, 1953, Daisy also received as consideration, income and other benefits from Andrew's share of the community accruing during the period between the date of his death and the date of distribution of his estate to the trust, which was not required to be used to pay Andrew's debts, administration expenses, and other charges, and which Daisy would not otherwise have received in the absence of her election. The amount of the income which had accrued from Andrew's share of the community during the administration of his estate which DaisyPage 522became entitled to by virtue of her election has not been made clear by the parties, and computation and stipulation of the amount is required under Rule 50.

3. The cost basis in the 41.307 percent life interest acquired by Daisy is equivalent to the value of that life interest as of September 30, 1953. That value as of September 30, 1953, was $34,413.77. Daisy was entitled to amortization deductions over the course of the average future lifetime of a person of her age at the effective date of the transaction who acquires a life estate. Daisy was 74 years 8 months and 12 days old on September 30, 1953, and on her nearest birthday she would be 75 years of age. The average future lifetime of an individual 75 years old, on the basis of the mortality tables implicit in table 1 of section 20.2031-7(f), Estate Tax Regs., for valuing life estates, is 7.55 years. Daisy is entitled to amortization deductions over the course of 7.55 years beginning on September 30, 1953. The annual amortization allowable is the amount of $4,558.12 and this amount is allowable as a deduction from Daisy's income for the years 1957 through 1960. The allowable amortization for Daisy's taxable year 1961 is the amount of $1,594.34.

4. The annuity agreement executed between Daisy and Robert on December 9, 1959, was made in contemplation of death and with the purpose of avoiding income and estate taxes. It was made in violation of the spendthrift provision of the testamentary trust. The attempted transfer lacked substance and it is not recognized for tax purposes.

5. Daisy's transfer of her community property with a retained life estate was for less than adequate and full consideration in money or money's worth. Table 1 of section 20.2031-7(f) of the regulations is applicable in valuing the property interests (life estate and remainder) exchanged. Petitioner has not shown that the use of table 1 will produce a result substantially at variance with the facts.

6. Decedent retained the right to the income from her share of the community property for her life. The value of the portion of the trust attributable to her share of community property transferred in trust, valued at the date of decedent's death, less the value of the consideration received, valued as of the date the property interests were exchanged, is includable in her gross estate. Computation of the consideration received is required under Rule 50.

7. Daisy or her estate had a legally enforceable claim at the date of her death to trust income in the amount of $20,446.66, which was earned and accumulated in 1960 and 1961 during the income beneficiary's lifetime, but not distributed to her, where the trust provided that all net income of the trust was distributable to her currently. The right to the undistributed trust income constituted an interest in property of the decedent at the date of her death.Page 523

8. The amount of $7,768.29, which was the aggregate of overpayments of trust income taxes made erroneously by the trustee for the taxable years 1957, 1958, and 1959, constituted property in which decedent had an interest at the date of her death and that amount is includable in Daisy's gross estate.

9. Petitioner's failure to file timely the estate tax return for decedent was due to reasonable cause and not due to willful neglect, where he was advised by his attorney in good faith that no return need be filed because no estate tax was due.

OPINION

Income Tax Cases: Docket Nos. 95357,1342-64

The basic issues in the income tax cases are whether Daisy acquired the life interest in the portion of the trust attributable to Andrew's share of the community property (41.307 percent) in a transaction which constituted a purchase, and, if so, whether she is entitled to amortization deductions in the years in issue for the cost of acquiring the life interest.²

Petitioner contends that Daisy acquired the life interest in the portion of the trust attributable to Andrew's community property transferred to the trust in a transaction which constituted a purchase or a bargained-for sale or exchange. He contends that the widow was entitled to amortization deductions for the cost of acquiring the 41.307-percent life interest during the expected useful life of the interest acquired, which he asserts was equivalent to Daisy's life expectancy as of the date the life interest became effective to the widow. He argues that the value of the life interest acquired should be computed on the basis of a reasonably-expected yield of 8.2 percent from the trust assets and upon a life expectancy of a female lifetime annuitant of Daisy's age on April 16, 1952, which petitioner asserts is 12.68 years. He argues that the life interest in 41.307 percent of the trust, as well as the remainder interest in Daisy's portion of the community property should be valued as of April 16, 1952, the date of Andrew's death, because the widow received the income and benefits of her husband's share of community property as it accrued from the date of his death, and not from the effective date of her election on September 30, 1953. On the basis of a projected annual income from the trust of $26,300 (which according to petitioner is an effective annual yield of 8.2 percent) and a life expectancy of 12.68 years, petitioner asserts that the value of thePage 52441.307-percent life interest acquired by Daisy was $111,910, as of April 16, 1952. On the same basis, he asserts that the value of the remainder interest in Daisy's share of the community property as of April 16, 1952, was $28,668. Petitioner contends that Daisy's cost basis in acquiring the 41.307-percent life interest in the trust was equivalent to the value of this remainder interest irrevocably transferred by Daisy pursuant to her election to act in accordance with and to accept the benefits of her husband's will. He argues that this value represents Daisy's cost basis and he urges that this amount is amortizable over the course of her life expectancy, allegedly 12.68 years.

Respondent contends that Daisy did not acquire the 41.307-percent life interest by purchase or in a bargained-for sale or exchange. He argues that Daisy made a gift of the remainder interest in her share of the community property by her election because by her election she agreed to transfer her share of the community to the testamentary trust while retaining, in effect, a life interest in her share by virtue of the trust provisions giving Daisy a life interest in all of the trust property. Respondent contends that Daisy acquired the life interest in the 41.307 percent of the trust attributable to Andrew's share of the community by bequest or inheritance, and he argues that section 273 of the Code precludes the allowance of amortization deductions claimed by petitioner in connection with the widow's acquisition of the 41.307-percent life interest.³Respondent points to the gift tax return filed by Daisy in connection with her election to transfer her share of the community to the trust and to accept a life interest in all of the trust. He asserts that the gift tax return was indicative of a gift of the widow's property rather than a bargained-for sale or exchange, or purchase. In arguing that the life interest was acquired by bequest or inheritance, and not by purchase, respondent relies primarily onHelveringv.Butterworth,290 U.S. 365(1933).

In the event it is held that the transaction resulting from Daisy's election constituted a purchase of the 41.307-percent life interest, respondent argues that petitioner is not entitled to amortization deductions because there is no provision of the Code providing for such deduction. He also argues that if the petitioner is entitled to amortization deductions, the cost of acquiring the life interest is equivalent to its value as of the date of the widow's election, September 30, 1953, which respondent contends was $34,407.10. Respondent objects to petitioner's method of valuing the 41.307-percent life interest acquiredPage 525and the remainder interest in Daisy's portion of the community property transferred to the trust. He contends that the property interests should be valued as of September 30, 1953, the effective date of the election and the transfer of the property interests, and that the proper valuation of the interests is to be determined by the use of table 1 of section 20.2031-7(f), Estate Tax Regs. (or the same table employed in the Gift Tax Regs., table 1, sec. 25.2512-5(f)). On this basis, respondent asserts that the value of the 41.307-percent life interest was $34,407.10, and the value of Daisy's remainder interest transferred to the trust was $175,917.94.

After careful consideration of the arguments of the parties, it is our judgment that the transaction resulting from Daisy's election constituted a purchase of the life interest in the 41.307 percent of the trust attributable to Andrew's share of the community transferred to the trust.

The parties are agreed that September 30, 1953, was the effective date of Daisy's election to accept the provisions of her husband's will and to act in accordance with its terms. The parties are also agreed that although Daisy transferred her entire share of the community property to the testamentary trust by her election, she, in effect, transferred only her remainder interest in that community property, because the life interest is that property was distributable to her under the terms of the trust. It is our finding that the transfer of this remainder interest in the transaction resulting from her election was not a gift for the purpose of determining the income tax questions involved in these cases, docket Nos. 95357 and 1342-64. Daisy's election to transfer her share of the community property to the trust and to accept the benefits provided for by the trust did not result from charitable impulses or from a detached and disinterested generosity. It is our view that the transfer proceeded from the incentive of anticipated benefits of an economic nature and that the widow's motives primarily involved concern for her own economic well-being. It was the incentive of receiving the income from all the community property of the spouses transferred to the trust which prompted Daisy to elect to have her share of the community pass to the trust in accordance with Andrew's will. She was nearly 75 years old on the effective date of her election, September 30, 1953. If she had not made the election to accept the provisions of Andrew's will, her means of support would have consisted primarily of her vested share of the community property. Prior to September 30, 1953, Daisy had the option of taking her share of community property only, to which she could look in the future years of her life for support, or of electing to have her share of the communityPage 526pass into the testamentary trust, in which case she would be entitled to the income from all of the community property of the spouses transferred to the trust. In addition, she could derive the intangible benefit of the management ability of the trustee, her son Robert, in handling the trust property. In making the election it was her dominant intent to acquire the benefits of the life interest of her husband's share of the community while at the same time retaining a life interest in her own portion of the community.

Respondent himself has described the transaction on brief as "one in which Daisy transferred her remainder interest inher own community one-halfinto trustin return fora life estate in Andrew's share of the community," and he has noted that "she received it [the life estate in Andrew's share of the community] only upon her satisfying a condition precedent:towit,her election to haveher own shareof the community pass under Andrew's will." (Emphasis supplied.)

It is concluded that Daisy purchased the 41.307-percent life interest attributable to Andrew's share of the community transferred to the trust. In our opinion the principles set forth inGistv.United States,296 F. Supp. 526(S.D. Cal. 1969);Commissionerv.Siegel,250 F.2d 339(C.A. 9, 1957), affirming26 T.C. 743; andAllen M. Early,52 T.C. 560(1969), are determinative of the questions involved here.

InGistv.United States, supra,the U.S. District Court for the Southern District of California dealt with the same question, namely, whether a widow was entitled to deductions for amortization of the cost of acquiring a life estate in a testamentary trust. There, the taxpayer, a widow and a resident of California, elected to have her share of community property pass under her husband's will to a testamentary trust provided for under the will. The widow was to receive the entire income of the trust for the duration of her life. The court there stated the following (pp. 528, 529):

It is now clear that a taxpayer who purchases a life estate may amortize his cost over the period of the beneficiary's life expectancy by ratable annual deductions. 26 U.S.C.A. (I.R.C. 1954) § 167; Rev. Rul.62-132, 1962-2, Cum. Bull. 73: Bell v. Harrison,212 F.2d 253(7th Cir. 1954); Commissioner v. Fry,283 F.2d 869(6th Cir. 1960). The fact that the life estate here was created upon the exercise of the widow's election does not alter the fact that plaintiff may be a purchaser for value as would be one to whom she sold her life estate for cash.

For purposes of the federal estate and gift tax, the exercise of a widow's election where the estate consists entirely of community property is considered a bargained-for sale or exchange made for consideration, i.e., a purchase. Commissioner v. Siegel,250 F.2d 339(9th Cir. 1957); Vardell's Estate v. Commissioner307 F.2d 688(5th Cir. 1962). The holding in United States v. Stapf,375 U.S. 118,84 S.Ct. 248,11 L.Ed.2d 195(1963), and the principles therein espoused are not inapposite.Page 527

While no income tax case dealing with a widow's election holds that the widow can amortize the cost of her life estate, in light of the above cases it would be illogical to conclude that she cannot.

* * * * * * *

It is undisputed that plaintiff's election to take under the will was bona fide and not based on tax avoidance motives. Therefore, this court finds that plaintiff purchased a life estate in the trust created under the will of her husband, and that she is entitled to amortize the cost of what she purchased by annual deductions.

The District Court inGistcited and relied in part onCommissionerv.Siegel, supra,in determining that the taxpayer was entitled to amortization deductions, amortizing the cost of acquiring the life estate. TheSiegelcase related to a gift tax, but it is important because it details the nature of transactions such as the one involved in the instant cases. Under facts quite similar to those of the present cases, the Court of Appeals for the Ninth Circuit concluded that a widow's election to accept a life interest in a testamentary trust created pursuant to her husband's will in return for the transfer of her share of the community to the trust was a transaction which constituted a contract under California law which was binding upon the surviving spouse. The court held that the life interest in the trust as well as other benefits received under her husband's will was consideration received by the widow in return for her election to transfer her share of the community property to the trust, and that for the purpose of the gift tax, only the amount by which the value of the property transferred by the widow to the trust exceeds the value of the consideration received should be included in computing the amount of the gift. It is clear from the court's opinion that the transaction was not strictly donative, but that it was entered into by the widow only "after full consultation between her and the trustees" with the purpose of maintaining her high standard of living. As inSiegel,the widow here elected to transfer her share of the community to the trust primarily for the purpose of maintaining her standard of living. Daisy considered it the best way to provide a means of support for herself, and essentially her motives were not donative. The transaction was carried out primarily for her own economic self-interest and we consider it a bargained-for sale or exchange. Respondent's contention that the gift taxes paid by Daisy are indicative of a donative intent and a gift rather than a purchase is without merit, for it has long been recognized that donative intent is not a necessary element to make a transfer subject to a gift tax.Commissionerv.Wemyss,324 U.S. 303(1945);Eleanor A. Bradford,34 T.C. 1059(1960). The mere fact that a gift tax was imposed on Daisy does not require us to conclude that the transfer of her remainder interest was by gift and not the consideration for the purchase of the 41.307-percentPage 528life interest in the trust attributable to Andrew's share of the community.

InAllen M. Early, supra,a case involving a question similar to those of these income tax cases, this Court held that the petitioners there acquired a joint life interest in a percentage of a trust "through the sale or exchange of property and not by gift, bequest, or inheritance," and we there allowed amortization deductions based on the cost of acquiring the life interest which in that case was equivalent to the value of the acquired life interest, as of the date of acquisition.

In arguing that Daisy did not acquire the life interest in 41.307 percent of the trust by purchase, respondent relies upon the decision ofHelveringv.Butterworth, supra. InButterworth,the Supreme Court, in determining the ultimate question of whether a trust was entitled to deductions for amounts distributable to a widow, had concluded that the widow who elected to accept the income of a testamentary trust in lieu of her statutory rights in her deceased husband's property was a beneficiary and not a purchaser of the income interest in the trust. The case is not applicable to the present case. It is distinguishable factually in that it dealt with a widow's election to take a life interest in lieu of her statutory share inher husband's property. In the cases here, the widow's election constituted an agreement to transferher own propertyin which she had a vested interest (not a right to her husband's property) in exchange for the benefits provided for her in Andrew's will. Under California law, the widow is considered to have a "present, existing and equal interest" during coverture in the community property. She is considered the owner of her share of the community. TheButterworthcase has been distinguished and found inapplicable to situations involving a widow's election under California law in bothGistv.United States, supraat 529, and inCommissionerv.Siegel,supraat 346 fn. 24, and it merits no further discussion here.

The question remains whether Daisy is entitled to amortization deductions, and, if so, what is the cost basis and the useful life of the amortizable interest.

Once it has been determined that the taxpayer acquired the life interest by purchase, there can be no serious question of the taxpayer's right to ratable, annual deductions based on the cost of the life interest and based on the life expectancy of the original holder of the life estate. See Rev. Rul.62-132, 1962-2 C. B. 73;Commissionerv.Fry,283 F.2d 869 (C.A. 6, 1960); andBellv.Harrison,212 F.2d 253(C.A. 7, 1954). The Commissioner has acquiesced in the decisions in theBellandFrycases, wherein, in each case, a remainderman purchased the life estate which preceded the remainder interest, and it was held that the remainderman was entitled to amortize the cost of purchasing thePage 529life estate. Having decided that Daisy acquired her life interest by purchase, there is no basis for distinguishing Daisy's right to amortization deductions from those of the taxpayers in theFryandBellcases. See alsoAllen M. Early,supra.

It is our finding and conclusion that Daisy's cost basis is limited to the value of the 41.307-percent life interest acquired, valued as of September 30, 1953. The value of this life interest as of that date was $34,413.77. Petitioner's valuation of the property interests exchanged cannot be sustained. Nor can we sustain his contention that the cost of acquiring the 41.307-percent life interest is equivalent to the fair market value of the remainder interest in Daisy's share of the community transferred to the trust.

When Daisy made her election on September 30, 1953, the consideration she received consisted of a life estate in Andrew's portion of the trust, as of September 30, 1953, and, in addition, certain amounts of the benefits and income from Andrew's portion of the community which accrued during the period between his death and the distribution of his estate to the trust on September 30, 1953. SeeCommissionerv.Siegel,supra. It is not disputed and indeed it is recognized by respondent on brief that Daisy had to elect to have her share of community property pass to the trust as a condition precedent to receiving the benefits from the trust. If Daisy did not elect to act in accordance with her husband's will, she would not only have foregone the benefits of the 41.307-percent life interest, but she would also have given up the opportunity to receive the benefits resulting from her husband's portion of the community, to which she would not otherwise have been entitled under the laws of descent and distribution in California, which accrued during the period between Andrew's death on April 16, 1952, and the date of her election, September 30, 1953. We find and conclude that the benefits accruing during that period, which Daisy would not otherwise have been entitled to under the laws of intestacy in California, were a part of the consideration received. The amount of income and other benefits accruing during the interim period from Andrew's property has not been shown on brief or at the trial. Nor has it been shown what part of those benefits were received by the widow as the result of her election, and which she would not otherwise have received if she had not elected to have her share of the community pass under Andrew's will. However, this amount is of no concern to us in the income tax cases. Our concern here is with the determination of the cost of acquiring the 41.307-percent life interest in the trust, which commenced on September 30, 1953, for the purpose of determining the allowable deductions computed upon a cost basis and an expected useful life of that property interest.Page 530

Petitioner is in error in the valuation of the 41.307-life interest received by the widow and the remainder interest in her share of the community property transferred to the trust. There is an extensive discussion of the valuation of the property interests in the related estate tax case and it need not be repeated here. Briefly, however, it must be said that Daisy at the time of her election could not have reasonably expected or anticipated an annual yield of 8.2 percent, as petitioner has contended, because of the trustee's very broad powers of sale and investment which precluded the widow from reasonably anticipating what securities or other property would constitute the income-producing assets of the trust and, consequently, what the yield of the trust assets would be. Also, petitioner's calculation of a projected 8.2-percent yield fails to consider the expenses of administering and maintaining the trust. It is also concluded that the life expectancy of 12.68 years based on the life expectancy of a female annuitant of Daisy's age on April 16, 1952, is inapplicable here because Daisy was not acquiring an annuity, but rather a life estate or life interest in a trust. Finally, in valuing a 41.307-percent life interest which was acquired as of September 30, 1953, we think it is clear that Daisy's life expectancy should be based on her age as of this date, rather than as of the date of Andrew's death.

We have found that the value of the 41.307-percent life interest as of September 30, 1953, was $34,413.77, and the value, as of that date, of the remainder interest was $175,901.27. It is our view that the cost of acquiring the 41.307-percent life interest is limited to its value, $34,413.77. To the extent that the value of the remainder interest transferred to the trust exceeded the value of the life interest received, plus the other consideration received, we consider it as essentially a gift and not a part of the cost basis, in light of the fact that the remainder of the community property was to be distributed to Robert or his issue, surviving at the termination of the trust. We think this conclusion is consistent withGistv.United States, supra;Allen M. Early, supra,and also with the principles set forth inCommissionerv.Siegel, supra,even though it is recognized thatSiegeldealt with a gift tax rather than the income tax questions involved here.

We sustain respondent in the use of table 1 of section 20.2031-7(f), Estate Tax Regs., in valuing the life and remainder interests. For a person of Daisy's age on September 30, 1953, the life expectancy implicit in table 1 is 7.55 years, and it is concluded that ratable annual amortization deductions for the 41.307-percent life interest acquired by Daisy are allowable for 7.55 years beginning with the inception of the trust on September 30, 1953.Page 531

Finally, with respect to respondent's determinations of deficiencies in income taxes for the years 1960 and 1961, there is the question of whether the agreement executed between Daisy and Robert, through which Daisy allegedly transferred her entire life interest in the portion of the trust attributable to the transfer of her share of community property to the trust in exchange for a fixed, lifetime, private annuity, should be recognized for tax purposes. It is petitioner's position that the agreement was a valid contract which constituted a sale or exchange of the life interest in 58.693 percent of the trust for the annuity, and petitioner contends that the income realized annually by Daisy is includable in her gross income in her taxable years 1960 and 1961, only to the extent that the annual annuity payments exceeded Daisy's alleged cost or investment.

Petitioner maintains that Daisy's cost or investment was equivalent to the value of her life interest, as of the date of the agreement, in the portion of the trust attributable to her share of community property transferred to the trust (i.e., the value of the life interest in 58.693 percent of the trust). According to petitioner, the total investment based on the value of this life interest as of December 9, 1959, amounted to $110,030.57, and the amount of the investment deemed excludable in each year was computed by applying a percentage, based on the total cost ($110,030.57) expressed as a percentage of the total expected return ($220,599.46), to the annual annuity payments received.

Respondent has determined that all of the distributable net income of the testamentary trust for its taxable years 1960 and 1961 is includable in Daisy's income in her taxable years 1960 and 1961. Respondent contends that the agreement of December 9, 1959, was not a valid enforceable contract, and he argues that it was a sham effected by the parties merely for tax avoidance purposes. He argues that Daisy executed the agreement, in which she purportedly transferred her entire life interest in 58.693 percent of the trust, in violation of the spendthrift provisions of the trust, and respondent argues further that Robert violated his fiduciary duties by entering into the alleged contract. Respondent maintains that the alleged contract was void under California law or at least revocable or voidable by operation of law and he urges that we not recognize the attempted transfer.

After carefully considering the evidence presented, including the California cases cited by the parties with respect to spendthrift trusts and the trustee's duty to not deal with the trust property for his own benefit, it is concluded that the agreement executed by Daisy did not constitute a valid enforceable contract under California law and that it did not constitute an effective transfer of her life estate in the portion of the trust attributable to her share of the community property. It isPage 532concluded, further, that all of the distributable net income in the years 1960 and 1961 is includable in Daisy's income for her taxable years 1960 and 1961. We are not unmindful of the California cases which have held that a spendthrift provision of a trust created by a grantor could not operate to restrict the grantor's right to alienate or transfer by anticipation the income interest.Nelsonv.California Trust Co.,33 Cal.2d 501,202 P.2d 1021(1949);Bixbyv.California Trust Co.,33 Cal.2d 495,202 P.2d 1018(1949). We do not think those cases are apposite here. The reason for not enforcing the spendthrift provision in the case of a grantor who has created a trust in which he is the income beneficiary is to prevent the grantor from effecting a simple means of avoiding the claims of his creditors while at the same time maintaining the beneficial enjoyment of the property. None of the California cases cited by petitioner with respect to grantor's power to alienate his income interest in a trust containing a spendthrift clause approach the facts involved in the instant cases. As we have said before, under the unusual facts of this case, Daisy, in transferring her share of the community property to the trust, was not acting merely as a settlor or as a grantor. Her actions in making the transfer were not strictly donative. In making her election she entered into a contract which was binding upon her. In the case ofFlanaganv.Capital National Bank ofSacramento,213 Cal. 664,3 P.2d 307,308(1931), a noted case of the Supreme Court of California, and cited by the Court of Appeals for the Ninth Circuit inCommissionerv.Siegel,the following was stated in regard to a widow's election in California:

The "waiver" was in fact a contract, by the terms of which plaintiff accepted certain devises and bequests under the will in lieu of any right she might have in any community property. Such an agreement is clearly supported by consideration and is binding upon plaintiff irrespective of any element of estoppel arising from the testator's change of position in reliance upon the representation contained in the instrument.

See alsoSiegel,wherein a widow's election to surrender her share of community property and to accept under the provisions of her deceased spouse's will was viewed as a contract supported by adequate consideration. Because Daisy's election constituted a binding contract, we are of the opinion that under California law any attempt by her to anticipate the income resulting from her life estate in the testamentary trust or any attempt to transfer or assign her interest in the trust, even if that interest were attributable to her share of the community property transferred to the trust, would constitute a breach of contract. Therefore, it is our conclusion that the attempted transfer of her life estate in 58.693 percent of the trust was not a valid enforceable contract under California law, and we will not give it recognition here. It is noted further in this regard that petitioner has admittedPage 533that the attempted transfer of Daisy's income interest in a portion of the trust was motivated by tax considerations. It is our finding that the attempted assignment had no substance or purpose other than an attempt to effect a reduction of Daisy's income and estate taxes. Therefore, it is concluded that the attempted assignment of Daisy's life interest in 58.693 percent of the trust should not be recognized for Federal tax purposes. In light of our findings and conclusions, we find it unnecessary to go further into the delicate question of whether the attempted transfer was invalid as a breach of the trustee's fiduciary duties.

With respect to the income tax cases, it is held that the net income of the trust for the years 1957, 1958, 1959, 1960, and 1961, in the amounts of $26,618.44, $26,964.53, $27,073.28, $48,777.51, and $27,048.76, was includable in Daisy's gross income in her respective taxable years. Annuity income in the amounts of $11,512.53 and $10,553.56 reported in Daisy's returns for 1960 and 1961, respectively, is not recognized and is eliminated from her gross income. Annual amortization deductions of $4,558.12 are allowed for Daisy's taxable years 1957 through 1960. An amortization deduction of $1,594.34 is allowed for 1961.

Estate Tax Case: Docket No. 6182-65

The basic question in the estate tax case is whether Daisy's transfer of her share of community property to the trust, while retaining a life estate in that property, constituted a bona fide sale of her remainder interest for less than adequate and full consideration in money or money's worth, so that the value as of the date of her death of her share of the community property, less the value of the consideration received in the transaction, is includable in her gross estate under sections 2036 and 2043 of the Code.

The parties are agreed that by virtue of her election Daisy in effect made a transfer of her remainder interest in her share of the community property, while retaining a life estate in that share. Respondent has determined that Daisy's transfer of her remainder interest was a transfer for less than adequate and full consideration in money or money's worth, and, by application of sections 2036 and 2043 of the Code, respondent has included in Daisy's gross estate the value of Daisy's share of the community property transferred to the trust, valued as of the date of her death, less the value of the consideration received therefore, valued as of the date of the transfer of the property interests.

The fundamental controversy here involves the valuation of Daisy's remainder interest transferred to the trust and the valuation of the life income interest in Andrew's portion received by Daisy by virtuePage 534of her election. Respondent relies on his regulations, specifically section 20.2031-7(f), Estate Tax Regs., in valuing Daisy's remainder interest transferred to the trust and in valuing the life estate received by Daisy in Andrew's portion of the trust (41.307 percent). Respondent urges that the consideration received by Daisy upon her election was the life estate in Andrew's portion. Respondent has valued this life estate as of September 30, 1953, at $34,407.10 (based on a rounded-off figure for the value of the corpus of the trust on September 30, 1953, of $383,000, rather than the more accurate value, as determined by respondent, of $383,009.38, and based on a 41.3-percent interest in the trust, rather than the more accurate 41.307 percent of the trust which the parties have stipulated is the part attributable to the transfer of Andrew's share of the community property to the trust). Respondent determined the value of Daisy's remainder interest as of September 30, 1953, to be $175,917.74. Respondent contends that because the value of the remainder interest transferred exceeded the value of the life estate in Andrew's portion, the transaction did not constitute a bona fide sale for adequate and full consideration in money or money's worth.

Petitioner, on the other hand, contends that Daisy received full and adequate consideration in money's worth in the transaction. Petitioner argues that table 1 of section 20.2031-7(f), Estate Tax Regs., employed by respondent in valuing the property interests involved, is based upon factors for life expectancies and for annual yield which are not applicable to the case at hand. Petitioner asserts that the table should not be applied because it does not make a differentiation between male and female life expectancies, contending that a female's life expectancy is longer under situations such as are involved herein.

Petitioner urges that the life expectancy of a female annuitant of Daisy's age as of the death of Andrew on August 16, 1952, as reflected in section 1.72-9, table 1, of the Income Tax Regs., is more appropriate under the circumstances in the present case, because it reflects the difference in life expectancies between male and female annuitants. According to petitioner, on the basis of table 1, sec. 1.72-9, Income Tax Regs., Daisy's life expectancy as of the date of Andrew's death was approximately 12.6 years.

Petitioner also urges that the compound interest factor of 3 1/2 percent (reflecting an annual yield of 3 1/2 percent, compounded annually, for a life estate), employed in table 1 of section 20.2031-7(f), Estate Tax Regs., is inapposite here. Petitioner contends that as of the date of her election, September 30, 1953, there was a reasonable expectation of a minimum annual yield from the portion of the trust attributable to Andrew's contribution of community property in the amount ofPage 535$10,862 (including the rental value of the family residence) or, in effect, an annual yield of 8.2 percent based on the value of the trust corpus as of September 30, 1953, which petitioner asserts was $319,842.98, the amount which the parties have stipulated was the value of the assets distributed to the trust on April 16, 1952, the date of Andrew's death.

It is our conclusion that respondent was correct in his use of table 1, section 20.2031-7(f) of the regulations, for determining the value of Daisy's remainder interest transferred to the trust and the value of the life estate received by Daisy in the portion of the trust attributable to Andrew's community property transferred to the trust. It is recognized, of course, that petitioner has the burden of proving that respondent's valuation of the property interests involved was incorrect, and where, as in this case, respondent has relied upon his Estate Tax Regulations for valuing life estates and remainder interests, it is petitioner's burden to show that the regulations employed are not applicable under the circumstances. In the present case, petitioner has not carried his burden, and, therefore, respondent is sustained in his use of table 1, sec. 20.2031-7(f), Estate Tax Regs., to value the property interests involved.

The use of a life expectancy factor based on the life expectancy of a female annuitant as reflected in table 1 of section 1.72-9, Income Tax Regs., is clearly inapplicable. Daisy transferred a remainder interest to the trust. While it is true that she purchased the life estate, she cannot be considered in any sense a purchaser of an annuity. In contrast to the normal, ordinary annuity, Daisy's life estate in the trust did not assure her of a fixed annual income or a fixed minimum annual income. The income which was to be distributed to Daisy under the terms of the trust could fluctuate depending on the vagaries of the businesses whose stocks constituted the principal assets of the trust. Moreover, part of the trust assets consisted of the family residence, a non-income-producing asset, the use of which Daisy was entitled to for her life under the terms of the trust. The right to the use of a non-income-producing asset is not ordinarily a benefit provided under an annuity contract. Moreover, the choice or election to which Daisy was put by her husband is really not analogous to the purely voluntary actions of an individual who enters into an annuity contract. Since the Commissioner's table 1, sec. 1.72-9, is based upon composite studies of the life expectancies of ordinary, voluntary annuitants purchasing a commercial annuity, it is our judgment that it is inapplicable here in valuing the property interests transferred or acquired by Daisy where Daisy was confronted with the choice of taking her share of the community property or of transferring that share of communityPage 536property to the trust and receiving a life estate in the entire corpus of the trust.

Moreover, petitioner has failed to introduce any evidence by an expert in actuarial computations, in the construction of life expectancy tables, or in the determination of life expectancies based on statistical compilations of rates of mortality. No evidence has been presented from which we could conclude that for the purposes of valuing a life estate a differentiation should be made between the life expectancy of a male or female of the same age, and, therefore, petitioner's argument in this regard cannot be accepted. It is concluded that the life expectancy factor in table 1 of section 20.2031-7(f) for valuing a life estate and a remainder interest was properly applicable in valuing the property interests exchanged or transferred by virtue of Daisy's election on September 30, 1953.

In contending that the compound interest factor of 3 1/2 percent for life estates in table 1, sec. 20.2031-7(f) (reflecting an average annual yield of 3 1/2 percent), is inapplicable under the facts involved in this case, petitioner relies on the principles set forth inIthaca Trust Co. v.United States,279 U.S. 151(1929);Simpsonv.United States,252 U.S. 547(1920);United Statesv.Provident Trust Co.,291 U.S. 272(1934);Hanleyv.United States,63 F. Supp. 73(Ct.Cl. 1945);Estate of Lillian B. Gregory,39 T.C. 1012(1963);Huntington National Bank,13 T.C. 760(1949), and other cases. Petitioner argues on the basis of the aforementioned authority that the use of the tables in the Estate Tax Regulations for valuing a life estate or remainder interest is merely evidentiary in nature, and where the use of the table will produce a resultsubstantiallyat variance with the facts, its use is unauthorized. Petitioner recognizes that he has the burden of proving that the use of the table will produce a result substantially at variance with the facts, but petitioner maintains that he has made a showing that as of the date of Daisy's election, a minimum annual yield of approximately 8.2 percent could be reasonably expected, as opposed to the annual yield for a life estate implicit in table 1 of section 20.2031-7(f) of 3 1/2 percent.

We agree with petitioner's interpretation of the law with respect to the application of the table in the regulations for valuing a life estate or a remainder interest in property placed in trust. InHanleyv.United States, supra,the Court of Claims, in determining the value of a life estate and a remainder interest for estate tax purposes, stated the following (pp. 80, 81):

The Commissioner, on the other hand, contends that his Regulation had the force and effect of law and that, therefore, the computation of the value of the life estate in accordance with the table referred to in these Regulations was proper.Page 537

We think the plaintiff is correct in saying that the use of this table is unauthorized and improper whenever its use produces a result substantially at variance with the facts.

These principles have been cited with approval by this Court. SeeHuntington National Bank, supra,where, with respect to the use of the table in the regulations for valuing a life estate, and a remainder interest transferred to charity, it was said, at page 772: "Under the facts herein, the yield was approximately 3 1/2 per cent. The use of the table based upon the rate of 4 per cent was erroneous because at variance with the facts."

Of course, it is recognized that in determining whether the use of the table in the regulations will produce a result substantially at variance with the facts, the relevant facts in considering the valuation of the property interests created or transferred, are those facts existent at the time the taxable act was effected.Ithaca Trust Co. v.United States, supra. Valuation is not to be determined by hindsight, and "later arising facts are relevant in the determination only if they were anticipatable or could be reasonably expected as of the date of the taxable event." SeeEstate of Lillian B. Gregory,supraat 1021. InIthaca Trust Co. v.United States, supraat 155, it was said:

Therefore the value of the thing to be taxed must be estimated as of the time when the act was done. But the value of property at a given time depends upon the relative intensity of the social desire for it at that time, expressed in the money that it would bring in the market.

Although in agreement with petitioner's view of the law regarding the question of valuation, we cannot sustain petitioner in his contention that table 1, sec. 20.2031-7(f), Estate Tax Regs., is inapplicable here. We find that petitioner is in error in his allegation that as of the date of Daisy's election an annual yield from the trust of 8.2 percent could be reasonably expected. And, it is found and concluded that there has been no showing that table 1, sec. 20.2031-7(f), of the regulations, with its 3 1/2-percent interest factor, would produce a result substantially at variance with the facts of this case so that the use of table 1 for valuing the life estate and remainder interest involved would be precluded.

Petitioner has erred in his calculation or assertion of a reasonably expected annual yield from the trust of 8.2 percent. The expected yield of 8.2 percent alleged by petitioner is based upon the income which would have been produced and received by the trustee in the calendar year 1953, if the trust assets which were distributed to the trustee pursuant to the Probate Court's decree on September 30, 1953, had been held by the trustee throughout the entire year 1953. Petitioner asserts that the annual income which would have been produced if the trustPage 538assets were held during the calendar year 1953 amounted to $26,300, based on the sum of the actual dividends paid in 1953 on the shares of stock which as of September 30, 1953, were distributed to the trust ($21,500) and the fair rental value of the residence (which petitioner alleges to be $400 per month, or $4,800 per year). To arrive at the alleged expected annual yield petitioner expressed this estimated annual income of $26,300 as a percentage of the fair market value of the trust assets as of September 30, 1953, which petitioner asserts was approximately equivalent to the fair market value as of the date of Andrew's death, April 16, 1952, of the assets distributed to the trust on September 30, 1953. The parties have stipulated that the fair market value of the assets as of April 16, 1952, which were subsequently distributed to the trust on September 30, 1953, was $319,842.98, and petitioner asserts that this amount was the value as of September 30, 1953. On the basis of petitioner's projected annual income of $26,300 and a fair market value of the trust corpus on September 30, 1953, of $319,842.98, the projected annual yield is alleged to be 8.2 percent. For several reasons we find that petitioner's projected yield of 8.2 percent could not have been reasonably expected at the date of Daisy's election and the transfer of the property interests involved.

First, petitioner's assertion that the fair rental value of the family residence was $400 per month in 1953 appears to us on the basis of the facts to be unreasonably high. We are unconvinced by the testimony of petitioner's witness, Robert F. Atkinson, a real estate broker and an appraiser, as to the fair rental value of the home in 1952 and 1953. The witness did not begin his appraisal work until 1955, and his knowledge of the Christ residence in 1952 was based upon his general familiarity with the neighborhood as a newsboy, during his youth, and upon his interest in the acquisition for construction purposes in 1952 or 1953 of a segment of the land on which the Christ residence was situated. Atkinson did not become familiar with the Christ property in his capacity as a real estate broker or as an appraiser until 1960 or 1961. In our opinion it is more reasonable to value Daisy's life estate in the family residence under the trust on the basis of table 1, sec. 20.2031-7(f), of the regulations. It is our finding that the annual fair rental value of the residence was $1,750, based on the basis of the 3 1/2-percent interest factor in table 1, sec. 20.2031-7(f), and based on our finding that the fair market value of the residence and the property on which it was situated was $50,000, as of September 30, 1953.

For the purpose of determining the reasonably expected annual income of the trust in order that the expected annual yield may be calculated, the expected income from the cash in the amount of $10,980.58 distributed to the trust should also be included. The income producedPage 539by the $10,980.58 in cash distributed to the testamentary trust invested at 3 1/2 percent provided in table 1 for a life estate results in an annual income of $384.32.

Petitioner's attempt to show that the reasonably expected yield from the trust was 8.2 percent rather than the 3 1/2 percent implicit in the regulations for valuing life estates and remainder interests, turns upon his projection of future income to be produced by the trust on the basis of the income which would have been produced by the trust assets and received by the trust if the trustee had held the distributed trust assets for the duration of the calendar year 1953. One question is whether the income which would have been produced and received by the trust in 1953 if the trust assets had been held during the entire year, can be used as a basis for projecting the future expected annual income from the trust. Primarily, petitioner has relied on brief upon his projected yield of 8.2 percent, computed on the basis of the income which allegedly would have been produced by the trust in one year, 1953, but he has also introduced the evidence of the dividend income which would have been produced and received on the shares of stock distributed to the trust for the years 1948 through 1953, inclusive, for the purpose of projecting alternatively an expected yield on the basis of average annual income which would have been generated by dividends actually paid by the corporations if the shares of stock transferred to the trust on September 30, 1953, had been held by the trustee during those years. The alternative question is whether the valuation of the property interests should or can be computed upon an expected or projected yield based upon the average annual income which would have been produced by the assets distributed to the trust on September 30, 1953, had they been held in trust during the years 1948 through 1953, inclusive.

It is our finding that the annual income which would have been produced by the trust assets if they had been held in trust during the entire year 1953 would be the amount of $23,664.72, which, expressed as a percentage of the fair market value of the entire trust corpus as of September 30, 1953 ($383,009.38), is 6.18 percent. It is also our finding that the average annual income which would have been produced by the trust assets if they had been held in trust during the years 1948 through 1953, inclusive, would be the amount of $20,991.77, which expressed as a percentage of the fair market value of the trust corpus as of September 30, 1953, is 5.48 percent. Petitioner's computation of an annual percentage yield of 8.2 percent must be rejected for several reasons. One, petitioner's asserted annual income for 1953 of $26,300 is incorrect because of the overvaluation of the fair rental income ($4,800 per year rather than $1,750). Also, petitioner's computation fails to includePage 540the value of Daisy's life estate in the cash distributed to the trust. Thirdly, the annual yield of 8.2 percent is based on an erroneous fair market value of the trust property on September 30, 1953, of $319,842.98. We have found that the fair market value of the trust assets as of September 30, 1953, was $383,009.38, based on respondent's determination of the value of the trust assets as of that date, which we must accept because petitioner has made no showing that the value of the assets was other than the value determined by respondent.

Although an annual percentage yield from the trust assets of 6.18 percent or 5.48 percent would have resulted, depending on whether the annual income for 1953 or the average annual income for the years 1948 through 1953, inclusive, is used to compute the yield, it is concluded that under the facts of the present case an annual yield of 6.18 percent, or of 5.48 percent, could not reasonably be expected or projected as of the applicable valuation date, September 30, 1953.

Under the terms of the trust Robert, as trustee, was given very broad powers in the administration of the trust. The provisions in Andrew's will relating to the trust gave Robert "full power and authority * * * to do any and all acts which he may deem necessary * * *, including, without limiting the generality of the foregoing, power upon such terms and conditions as the trustee deems advisable (1) to sell, exchange, repair, partition, divide, consent to partition or otherwise dispose of any property at any time forming a part of the trust estate, * * * (iv) to invest and reinvest any moneys at any time forming a part of the trust estate in such securities or property as the trustee shall deem advisable, irrespective of whether or not such securities are approved by law as investments for trust funds;" There was no assurance as of September 30, 1953, that the assets distributed to the trust would continue to be held in the trust. The trustee had the unrestricted right under the terms of the trust to sell the stocks which comprised the most substantial part of the trust assets, as well as the other trust property. Of course, the trustee was restricted in the sense that he was a fiduciary and could not act in breach of his fiduciary duties to the beneficiaries of the trust. But it is also recognized that Robert was not only trustee but also the sole remainderman, and it would not be unreasonable to expect that he would act to protect that remainder interest by investment in safer assets with perhaps a lower yield so long as such action did not violate his duty to Daisy as beneficiary of the life estate. This is especially the case here where one of the principal assets of the trust consisted of the stock in Central Waxed Paper, which was a closely held corporation in a highly competitive industry.Page 541

Petitioner has pointed to Central Waxed Paper's history of paying high dividends with ease based on a consistently growing earnings record with substantial retained earnings for growth. Petitoner has argued that Daisy could reasonably expect to benefit through the trust from a continuation of these dividends because of the blockage problem which petitioner asserts would and did effectively preclude the trustee from disposing of the Central Waxed Paper stock, from which a substantial part of the trust income was derived, and from which the dividends paid in the years 1948 through 1953 were the basis of petitioner's projected yield.

We cannot agree that there could be a reasonable expectation that the trustee would not dispose of the shares of Central Waxed Paper. In fact, Robert testified that he desired to dispose of the stock in Central Waxed Paper, if he could. Robert had worked during much of his adult life in various capacities in the paper industry. He was a member of the board of directors of Central Waxed Paper since 1948, and was aware of the highly competitive nature of the paper converting industry of which Central was a part. At the trial Robert stated that he would not consider a sale of Central stock because he felt he would be forced to sell at a discount from the stock's value and because it would entail recognition of capital gains. However, Robert indicated that he thought the unmarketable character of the Central stock was undesirable and he testified that it was his hope that Central be acquired by a corporation whose stock was more marketable in a share-for-share exchange, and Robert testified that it was his intent and desire to dispose of the Central stock, if such possibility were to occur. Such a possibility did occur, when in July 1960, Robert disposed of the stock in Central in a nontaxable exchange of Central stock for stock in St. Regis Paper Co.

In addition to the disposition of the Central shares, Robert made several other purchases and sales of trust assets during the course of his administration of the trust. These purchases and sales have been set forth in the Findings of Fact above and each transaction need not be repeated. Suffice it to say that the number and extent of these purchases and sales were not minimal.

Therefore, it is concluded that a projected or expected yield on the trust assets could not be based on the income which would have been produced if those assets were held in trust during 1953, or based on the average annual income which would have been produced in the years 1948 through 1953, inclusive, if they had been held in trust during those years, because on the basis of the broad powers of administration to which the trustee was entitled, there could have been noPage 542reasonable expectation that the assets distributed to the trust would continue to be held by the trust during Daisy's lifetime.

Of course, in addition to this uncertainty, there was the added uncertainty of whether the stocks distributed to the trust which constituted the income-producing assets of the trust would continue to pay comparable dividends in the future. The vagaries of business with respect to the corporations whose stocks were held by the trust and the uncertainties with respect to the future dividends of those corporations were not and could not reasonably be reflected in petitioner's projected annual yield based on previous dividends paid.

Finally, petitioner's computation of the annual yield or projected yield on the basis of the dividend income and fair rental income of the trust assets is in error in that it fails to take into consideration any of the administration expenses of the trust. While petitioner's annual yield was computed on the basis of gross income of the trust assets expressed as a percentage of the alleged fair market value of the trust corpus, it is clear that the value of Daisy's life estate in 41.307 percent of the trust which she received by virtue of her election should have been based on the income which she was to actually receive (i.e., on the net income). Under the terms of the trust, "taxes, assessments, costs, fees and expenses of every kind and nature, incurred or expended in the collection, care, administration, protection or distribution of the trust estate" was payable out of the trust income, with but few exceptions. It is clear that the value to Daisy of the life estate was the distributable income of the trust, the net income to be received by her, and the valuation of the life estate as well as the remainder interest should have been based on a projected yield which would be available to her, and not on the basis of gross income produced by the trust assets.

Therefore, for the reasons stated hereinabove, it is concluded that petitioner has failed to prove that the valuation of the life estate in Andrew's portion and the remainder interest in Daisy's portion of the trust by the use of table 1, sec. 20.2031-7(f), of the regulations, would produce a result substantially at variance with the facts. Under the facts here, we conclude that respondent's use of the table in valuing the property interests was proper.

It is found that the value of the life estate in Andrew's portion, as of September 30, 1953, was $34,413.77. The value of the remainder interest, as of the same date, transferred to the trust by Daisy was $175,901.27. If the life estate with a value of $34,413.77 were the only consideration received by Daisy by virtue of her election, it would be clear that the transaction would be a transfer with retained life estate for less than adequate and full consideration in money's worth. ButPage 543this was not the only consideration received by Daisy. During the period between Andrew's death on April 16, 1952, and the creation of the trust on September 30, 1953, a period of approximately a year and a half, Andrew's share of the community property was producing income, which to the extent not otherwise required to pay the debts and expenses of administration of Andrew's estate, and to the extent Daisy did not otherwise have a right to it under California law, was income to which Daisy was entitled upon and by virtue of her election. The effective date of Daisy's election was September 30, 1953, and as the result of her election on that date, Daisy became entitled to a life estate under the trust created pursuant to Andrew's will, plus certain benefits and income from Andrew's share of the community property accruing during the administration of his estate which were not otherwise required to pay administration expenses and debts of Andrew's estate and which Daisy would not have been entitled to but for her election. The consideration received by Daisy, therefore, was the life estate valued as of September 30, 1953, and certain proceeds from Andrew's share of the community property which had accrued prior to September 30, 1953, and which were payable to Daisy by virtue of her election. This latter part of the consideration was determinable as of September 30, 1953, on the basis of actual facts which had transpired. Although the precise amount of income produced by Andrew's share of the community property during this period was not submitted at trial or on brief by either respondent or petitioner, nor the amount of that income which Daisy received by virtue of her election, it is clear from the evidence that the gross income produced by all the community property of the spouses during the period April 16, 1952, to October 7, 1953 (the period of administration of Andrew's estate), was a total gross income of $29,047.63. The gross income from Andrew's portion of the community could not have exceeded 50 percent of this amount, or $14,523.82, and Daisy by her election became entitled to this amount (or a lesser amount depending upon certain factors such as whether administration expenses, debts, or other charges were payable out of this amount, whether Daisy had statutory rights under California law to part or all of the income from Andrew's share of the community accruing during the administration of his estate, and whether 50 percent, 41.307 percent, or some other percentage was Andrew's share of the community during the administration of his estate).

Respondent's position has been that the consideration received by Daisy in the transaction was only the life estate from Andrew's portion of the trust valued as of September 30, 1953. Petitioner, on the other hand, points out that Daisy's election entitled her to the proceedsPage 544from Andrew's portion of the community property from the date of his death and petitioner has argued that the consideration received by Daisy should be the value of a life estate in Andrew's portion of the community valued as of the date of his death. Both positions are considered by us to be in error. It is our conclusion that the consideration received by Daisy consisted of the life estate in Andrew's portion of the trust valued as of and beginning on September 30, 1953, plus the income and other benefits paid to Daisy only as a result of her election, which had accrued from Andrew's portion of the community property during the period of the administration of his estate.

As indicated above, the maximum income which Daisy could possibly receive from Andrew's portion of the community property during the administration of his estate could not have exceeded $14,523.82. Assuming,without deciding,that Daisy received the maximum conceivable amount from Andrew's share of the community property during that period ($14,523.82), it is still clear that the transfer of her remainder interest, valued at $175,901.27, was a transfer for less than adequate and full consideration in money or money's worth which could have amounted, at the very most, to $48,946.59.

Petitioner contends that in the event that any of Daisy's community property transferred to the trust is includable in her gross estate, the proper amount to be deducted pursuant to section 2043 of the Code from the amount includable is the actual trust income received by Daisy during her lifetime. Petitioner contends that "the actual yield received by Daisy during her lifetime from the Andrew trust and from the private annuity contract for which she transferred a partial interest in that trust in 1959, was the sum of $304,090." Petitioner relies onRighterv.United States,258 F. Supp. 763(W.D. Mo. 1966), andNoursev.Riddell,143 F. Supp. 759(S.D. Cal. 1956), in contending that only the value of Daisy's share of the community property transferred to the trust in excess of the actual consideration received by Daisy during her life should be included in her gross estate.

Respondent contends that the amount includable in Daisy's gross estate is the value of the portion of the trust attributable to her share of the community property transferred to the trust (58.693 percent), valued as of the day of Daisy's death, less the value of the consideration received, valued as of the date of acquisition. He argues that the consideration received for the purposes of section 2043 was the life interest in 41.307 percent of the trust and that the value of this interest on the date of acquisition was $34,407.10. He relies onEstate of Lillian B. Gregory, supra.

It is our judgment that respondent is correct in his contention that the 41.307-percent life interest in the trust received by Daisy in considerationPage 545for her election to have her share of the community pass to the testamentary trust should be valued as of the date received, September 30, 1953, for the purposes of determining the amount includable in Daisy's gross estate under section 2034.United Statesv.Righter,400 F.2d 344(C.A. 8, 1968);Estateof Lillian B. Gregory, supra.

InUnited Statesv.Righter, supraat 347, the Court of Appeals for the Eighth Circuit, referring to section 2043 of the Code, held that the statute means consideration received by the transferor-decedent as of the date the transfer for insufficient consideration is made, not as of the subsequent date of decedent's death. The Court of Appeals overruled the decision of the lower court,Righterv.United States, supra,which was relied on by petitioner here.Noursev.Riddell,supra,also relied on by petitioner, has been effectively distinguished from situations such as those involved in the instant case, inEstate of Lillian B. Gregory, supraat 1020.

It is concluded that the 41.307-percent life interest is properly to be valued as of September 30, 1953, the effective date of transfer for the purpose of determining the consideration received by Daisy, under section 2043.

However, as discussed hereinabove, this life interest was not the only consideration received by Daisy in the transaction resulting from her election. She also received as consideration certain amounts of income and other benefits which had accrued from Andrew's share of the community property between the date of his death, April 16, 1952, and the effective date of her election, September 30, 1953. As indicated hereinabove, the amount of the income and benefits accruing during the period between Andrew's death and the distribution of his estate, which Daisy became entitled to by virtue of her election, has not been shown by the parties. We think that those amounts which Daisy acquired as a consequence of her election were part of the consideration received and that those amounts should be computed and stipulated by the parties for the purpose of computing the amount includable in Daisy's gross estate under section 2043. It should be noted, however, that a family allowance, homestead rights, and any other rights in Andrew's estate to which the widow was entitled under California law, which she would have received even in the absence of an election to act in accordance with Andrew's will, were not part of the consideration received by Daisy in exchange for the transfer to the trust of the remainder interest in her share of the community.

Petitioner contends that, regardless of whether we find that Daisy's transfer of her remainder interest upon her election in 1953 was for less than adequate and full consideration in money or money's worth, the portion of the trust property attributable to her share of the communityPage 546property transferred to the trust is not includable in her gross estate because Daisy did not retain a life estate in the portion of the trust attributable to her, which petitioner alleges Daisy transferred to Robert by the agreement of December 9, 1959, in a bona fide sale for adequate and full consideration. Respondent contends that the 1959 agreement lacked validity and was ineffective as a transfer of Daisy's life interest in the portion of the trust attributable to her share of the community property because it was in violation of the spendthrift provision of the trust instrument and because the execution of the agreement by Robert constituted a breach of his fiduciary duties as trustee of the trust. Respondent argues that because the attempted transfer was invalid, Daisy retained therightto net income from the portion of the trust attributable to the transfer of her share of the community, and, therefore, the value of this portion of the trust, less the consideration received in the transaction pursuant to her election is includable in her gross estate by application of sections 2036 and 2043 of the Code. Respondent argues, further, that even if we consider the 1959 agreement valid and effective, it must be considered a transfer in contemplation of death for less than adequate and full consideration in money or money's worth, and respondent argues that by application of sections 2035, 2036, and 2043, the same amount is includable in Daisy's gross estate as if she had made no transfer of her life estate in the portion of the trust attributable to her transfers to the trust. In his alternative contention, respondent relies onUnited Statesv.Allen,293 F.2d 916(C.A. 10, 1961).

As discussed hereinabove in the related income tax cases, under California law Daisy's election to transfer her share of the community property to the trust in exchange for a life estate and other consideration was a contract between the widow and her husband or his estate, the terms of which, as expressed in Andrew's will, were binding upon Daisy. Daisy's attempted transfer of a part of her life estate in violation of the spendthrift provision constituted a breach of contract, which made the agreement voidable, if not void. Moreover, it appears, as respondent has contended, that the agreement was executed to avoid potential income and estate tax consequences and that it was motivated by tax considerations. Therefore, for the purpose of the estate tax questions involved here, we refuse to recognize the attempted transfer of Daisy's life interest in 58.693 percent of the trust as valid and effective.

The evidence leads us to the conclusion that there was no substance or purpose to the transaction aside from the tax-avoidance motives. The essence of a transaction is to be determined not by the subtleties of draftmanship, but rather by its total effect.Helveringv.Clifford,309 U.S. 331(1940);Gregoryv.Helvering,293 U.S. 465(1935). It isPage 547clear in the instant cases that nothing of substance was accomplished by Daisy's attempted transfer of a portion of her life estate in the agreement executed December 9, 1959. When Robert entered into the agreement with his mother on December 9, 1959, he intended to use trust income to pay part or all of the annuity because he could not pay all of the annuity out of his own annual income. In fact, in her taxable year 1960, the amount of $22,150 out of the total annuity payments of $22,979.11, was paid by checks drawn on the trust account by Robert, the drawer, acting as trustee. In that year, only $829.11 of the annuity was paid by Robert by check drawn on his personal account. In effect, almost all of the annuity payments in 1960 were made out of Daisy's life interest which she allegedly transferred. In substance, she continued to receive the benefits of the life estate in the portion of the trust allegedly transferred. Thereafter, for her taxable year 1961, the annuity payments made by Robert were drawn on his personal account, only after he was advised to do so by counsel. The annuity agreement was executed for no other purpose than to avoid income and estate taxes. Indeed, petitioner admits that the agreement was motivated by tax considerations, but he argues that there were other reasons, independent of the tax motives, which were responsible for Daisy's entering into the agreement, such as the assurance of an annual income in a fixed amount. We cannot accept petitioner's argument that a genuine motive in entering into the agreement was to secure a fixed annual income because under the trust Daisy was already assured that the standard of living to which she had been accustomed would be maintained, where the trustee was instructed to provide for her "proper care, maintenance, comfort and supportaccording to her station in life" out of net income or, if necessary, out of the corpus of the trust. (Emphasis supplied.) It is our finding that the agreement of December 9, 1959, was solely motivated by estate tax and income tax considerations, and the attempted transfer of Daisy's life estate in 58.693 percent of the trust is not recognized for tax purposes. It is concluded that Daisy retained a right to the income from the portion of the trust assets attributable to the transfer of her share of the community property to the trust, and that the value of that portion of the trust less the consideration received (as discussed hereinabove) is includable in her gross estate.Vardell's Estatev.Commissioner,307 F.2d 688(C.A. 5, 1962). Even if the agreement of December 9, 1959, is considered a valid assignment of part of Daisy's life estate, it is our judgment that it was a transfer in contemplation of death and for less than adequate and full consideration.United Statesv.Allen,293 F.2d 916(C.A. 10, 1961). However, it is to be noted that we do not base our decision on this point because, if we were to do so, consistencyPage 548with theAllendecision would require that the value of the trust property included in Daisy's gross estate be reduced by the value of the annuity provided for under the 1959 agreement. A different result follows from our conclusion that the 1959 agreement is not recognized for tax purposes, because the value of the portion of trust includable in Daisy' estate is not reduced by the value of the annuity.

Another question presented in the estate tax case is whether the amount of $20,446.66, which had been earned by the trust, during Daisy's lifetime, but which was held by the trustee and remained undistributed at the date of her death, should be included in her gross estate. Daisy was the sole income beneficiary of the trust during her life and she was entitled to the "entire net income from the trust in monthly or other convenient installments." However, the trust instrument provided that the trust was to terminate upon Daisy's death and "upon such termination the entire principal of the trust estate andall accrued and undistributed income therefrom" was to be paid to the remainderman, Robert, or his issue if he then be deceased, or if both Robert and his issue then be deceased, to those who would take by intestacy from Andrew at the date of the termination of the trust. (Emphasis supplied.)

In his deficiency notice, respondent described the amount of $20,446.66 as "Income owed but not distributed to decedent." Respondent regards the $20,446.66, which accrued in the trust during Daisy's lifetime, as income which was currently distributable to her under the terms of Andrew's will. He contends that the "property was subject to a claim of right in the decedent" and as such he regards it as properly includable in Daisy's estate. Respondent relies onEstate of Emma Earle,5 T.C. 991(1945), andMerritt J. Corbett,12 T.C. 163(1949).

Petitioner argues that this $20,446.66 was income properly distributable to Robert by the trust pursuant to the private annuity contract and, therefore, that it was not distributable to Daisy during her life. Petitioner contends that even if it was distributable to Daisy during her life, under the trust her right to the income was terminated at her death and, therefore, petitioner contends that the amount is not includable in Daisy's estate under section 2033 of the Code. He argues that the trust provision directing that all accrued and undistributed income be paid over to the remainderman "has been upheld under California law."Estate of Baldwin,69 Cal.App.2d 760(1945).

Petitioner has made no showing that the amount of $20,446.66 earned by the trust in the years 1960 and 1961 was attributable to the portion of the trust consisting of Daisy's share of community property transferred to the trust, which petitioner argues Daisy was not entitledPage 549to in 1960 and 1961 as the result of her alleged assignment by the agreement of December 9, 1959. Respondent has argued that the distributable net income from Andrew's portion (41.307 percent) was not distributed, either in whole or in part, to Daisy in 1960 and 1961. Petitioner has made no showing that the trust income attributable to Andrew's portion of the trust was distributed to Daisy in 1960 or 1961, and, indeed, from the trust accounts in evidence, Exhibit 18, it appears that no direct payments of trust income were made to Daisy in these years, aside from the 1960 payments out of trust income which constituted annuity payments. Although certain indirect payments were made by the trustee on Daisy's behalf out of trust income, it is clear that the trustee did not distribute all of the trust income accruing in 1960 and 1961 from Andrew's portion of the trust to Daisy in those years. Furthermore, we have determined that the 1959 annuity agreement was of no effect and that all of the trust's net income in 1960 and 1961 was currently distributable to Daisy for those years and, hence, includable in her income for income tax purposes. Therefore, petitioner cannot be sustained in his contention that Daisy did not have a right to the $20,446.66 of distributable net income of the trust during her lifetime.

Also without merit is petitioner's contention that Daisy did not have an interest in the undistributed trust income at the date of her death includable under section 2033.

It is our view that Daisy's personal representative had an enforceable claim against the trustee for the net income in the amount of $20,446.66 which had accrued to the trust and was available for distribution in 1960 and 1961, but which the trustee failed or neglected to distribute to the life beneficiary.

There has been no evidence introduced of an adjudication in an adversary proceeding or in any proceeding of a State court of California with respect to Daisy's property interest in the undistributed trust income at the date of her death. Nor are we aware of any decisions of the California courts which deal with the rights of the beneficiary of a life estate to accrued but undistributed income of a trust where there is a provision that all accrued and undistributed income of the trust upon the death of the life beneficiary should be paid over or distributed to the remainderman or other successor beneficiary. Therefore, it is left to us to determine what property interests Daisy possessed under the trust at her death. In this regard it is our view that the question of whether Daisy had a right or claim to the undistributed income which survived her death and which her personal representative could enforce on behalf of Daisy's estate is to be answered by a determination of the intent of the settlor, Andrew, as expressed in the trust instrument providing for the creation of the trust.Page 550

Under the terms of the trust, it is provided that the trustee was to pay to Daisy or to apply on her behalf the"entire netincome from the trust in monthly or other convenientinstallments."The trustee was not given discretion to accumulate the income of the trust. At the very least he was to pay the income of the trust to Daisy, when it was conveniently possible, if not monthly. From the trust accounts of receipts and disbursements, Exhibit 18, it is clear that Robert made distributions of the trust income during the years 1954 through 1959, in intervals of 2 to 3 months, usually paying a somewhat larger than the ordinary amount in January of each year. However, these payments were not made by the trustee to Daisy in 1960 and 1961. The only distributions made by the trustee to Daisy were the so-called annuity payments described previously, and no payments appear to have been made directly to Daisy as the holder of a life interest in the trust in 1960 and 1961. It is our view that it was the trustee's fiduciary duty to distribute to the life beneficiary the amount of $20,446.66, which had accrued to the trust and which was available for distribution in 1960 and 1961, and it is our finding and conclusion that Daisy's right to this amount did not terminate upon her death and that Daisy's personal representative had an enforceable claim to this income on behalf of the decedent's estate.

In construing the testator's will to determine his intent, it is noted that the provision in paragraph 4, subparagraph C, subdivision 3, which relates to distributing accrued or undistributed income, is to the effect that "all accrued or undistributed income,if any," is to be paid over to the remainderman. By the use of the phrase "if any," it is clear that the testator did not contemplate that substantial amounts would be paid over to the remainderman, and certainly not the amount of $20,446.66. Also the provision refers to "accruedand undistributed income," not toaccumulatedincome, and after considering Andrew's will in its entirety it is concluded that it was not the testator's intent to allow the trustee to accumulate income to be paid over to the remainderman, especially where the trustee was the remainderman under the trust.

The case cited by the petitioner,Estate of Baldwin,69 Cal.App.2d 760(1945), is not applicable here. That case held that a remainderman was entitled to undistributed income of a trust which had not been received by the trust and was not available for distribution until after the death of the life income beneficiary and under the trust instrument there the life beneficiary was entitled only to the net income of the trust which wasavailablefor distribution during the beneficiary's life. In our case the undistributed income was available for distribution during Daisy's life, but the trustee failed or neglected to distribute it.Page 551Moreover, under the terms of the trust, Daisy's right to the net income was not limited to the amounts "available" for distribution.

We feel quite sure that under California law Daisy's right to the accumulated and undistributed income of the trust, where there was no provision in the trust instrument giving the trustee any power or discretion to accumulate income, would be enforceable by her estate against the trustee. We feel this is so even where there is a provision, as we have here, that accrued or undistributed income is directed to be distributed to the remainderman.

Although there do not appear to be any California cases dealing directly with this question, it has been dealt with in other jurisdictions and the general treatment has been to the effect that the life beneficiary's estate has been entitled to the accrued income available for distribution. See the cases in 141 A.L.R. 1469, where the following has been said in regard to this question:

Another type of provision casting doubt on the testator's intent is a direction in the trust instrument to pay over, upon the life beneficiaries' death, any accrued or accumulated income to subsequent beneficiaries. Most cases seem to hold that such a provision, without more, does not evince an intention on the part of the creator of the trust that income available for distribution, but not paid to the life beneficiary, should be denied to his estate.

See alsoMartinv.United States,121 Ct. Cl. 829 (1952). It is concluded that the right to the undistributed income of the trust is an interest in property which Daisy possessed at the date of her death which is includable in her gross estate under section 2033.

Another similar issue involves $7,768.20, the aggregate of amounts in income taxes which were paid by the trustee for income reported as taxable income of the trust for the trust's taxable years 1957, 1958, and 1959. The parties are agreed that no part of the trust income was taxable to the trust itself in those years, that the income taxes were erroneously paid by the trust, and that the trust is entitled to a refund of the taxes paid. Respondent contends that Daisy had a right during her life to the amounts constituting income taxes improperly paid by the trustee in the years 1957, 1958, and 1959, and he contends that her right to the income tax refunds did not terminate at her death and that it constituted an interest in property includable in her gross estate under section 2033.

Petitioner contends that, although respondent agrees that the trust was entitled to refunds of income taxes paid by the trust in 1957, 1958, and 1959, he has not allowed those claims as of the time of the trial, nor, petitioner contends, has respondent given any indication that he intends to make the refunds. Petitioner contends that the income tax refunds are not distributable until they are actually repaid to the trust, and since they had not been repaid at the date of Daisy's death, she hadPage 552no claim to overpaid income taxes and she possessed no property interest includable in her estate under section 2033.

There has been no evidence presented of whether a claim for refund of the income taxes paid by the trust in 1957, 1958, and 1959 has been filed by the trustee or by any other representative on behalf of the trust. And it does not appear from the evidence whether respondent intends to make a refund of the overpayment to the trust. Likewise, it has not been indicated whether the statute of limitations bars the recovery of the overpayment. However, the question here is not whether Daisy or her estate will in fact be able to recover the overpayments. The question is whether Daisy had an interest in the overpayments at the date of her death which did not terminate at the date of death so that it would be includable in her estate under section 2033.

Daisy was entitled to the distributable net income of the trust during her lifetime. The distributable net income of the trust for the years 1957, 1958, and 1959 includes the amounts erroneously paid as income taxes by the trust in these years. Were it not for the error in paying the amount of $7,768.29 as income taxes, these amounts would have been distributed. Regardless of the fiduciary's error, Daisy was, in fact, entitled to have this aggregate amount distributed to her during the years 1957, 1958, and 1959. It was distributable to her and includable in her income in those years. The estate tax question here is whether Daisy's right to the $7,768.29 is defeated upon her death, by virtue of the fact that the income taxes erroneously paid by the trustee were not refunded to the trustee prior to Daisy's death and, therefore, were not available to be distributed prior to her death. Petitioner considers these overpayments as accrued and undistributed income to which Robert, the remainderman, became entitled upon Daisy's death.

After careful consideration of this question, it appears to us that the conclusion required can be no different from our conclusion under the previous issue concerning the undistributed income of the trust. It is our view that Daisy's right to the income taxes erroneously paid by the trustee was a right which survived her death and that she had a claim to the amounts paid which was enforceable by her estate. Hence, it is concluded that the income tax refunds owed to the trust constituted property of the decedent includable in her estate under section 2033 of the Code. As we have stated hereinabove, Daisy had a right to the entire net income of the trust during her lifetime. The income taxes, if they had not been erroneously paid by the trustee, would have been distributed to Daisy as part of the net income of the trust. It seems apparent to us that the error of the trustee in paying the $7,768.20 to the Commissioner, making this amount unavailable for distribution to Daisy, did not defeat her right to it. Likewise, the factPage 553that the $7,768.20 was unavailable for distribution during Daisy's life through the trustee's error, did not defeat her right or the right of her estate to it. There was a right of action against the trustee to compel him to recover the overpayments. If for any reason the overpayments could not be recovered, it appears to us that Daisy's estate could surcharge the trustee for his obvious error in paying the taxes. Since Daisy's interest in the income tax refunds was not terminated at her death, as we have determined, the value of this interest is includable in her gross estate under section 2033 of the Code. It is recognized that a potentially harsh result could occur if the trust's claim for refund of the overpayment is now barred, because in that event amounts which are here determined to be includable in the decedent's gross estate would have been beyond decedent's reach by the error of the trustee in making the payments and in failing to make timely claims for refunds. However, it has not been shown whether the refund claims had been barred by statute as of Daisy's death so that an action against the trustee to compel him to recover the erroneously paid taxes would be without effect. Nor has it been shown that Daisy's estate could not surcharge the trustee for his error. In other words, it has not been demonstrated that Daisy's interest in the overpayments had been effectively defeated by a bar of the statute of limitations for refunds, or for other reasons, preventing a recovery of the amount from the trustee. Therefore, we must assume that the right to the refund or its equivalent had not been defeated, and that if the decedent or her personal representative had been vigilant, they could have recovered the amount to which Daisy was entitled.

Finally, there is the question of whether respondent should be sustained in making additions to petitioner's estate tax in the amount of $33,196.68, under section 6651(a) of the Code, representing a 25-percent penalty for failure to file the estate tax return within the time prescribed by statute. Daisy died on December 2, 1961, and an estate tax return for her estate was due to be filed 15 months after her death, on March 2, 1963. An estate tax return was filed on November 22, 1963. It was not filed timely. In the return petitioner reported a gross estate of $7,553.16 and no estate tax was paid.

Petitioner contends that there was reasonable cause for his failure to file the estate tax return timely. He alleges that he has always relied on his attorney's advice with respect to what tax returns should be filed and when they should be filed. He further states that his legal counsel advised that no estate tax return should or need be filed because Daisy's gross estate was less than the specific exemption of $60,000 provided for in section 2052 of the Code. Respondent contends that the failure to file was not due to reasonable cause. He argues thatPage 554there were decisions relating to estate taxes which should have put petitioner's attorneys on notice that an estate tax return would be required for Daisy's estate.

It is our finding and conclusion that petitioner's failure to file timely was due to reasonable cause and was not due to willful neglect, so that the additions to tax under section 6651(a) should not be imposed upon petitioner. There is evidence that petitioner has relied on his counsel's advice in his tax matters. It is clear from the trust accounts that petitioner's counsel prepared the decedent's income tax returns as well as her estate tax returns. We are convinced that petitioner's attorney, in good faith, believed there was no need to file an estate tax return, and that petitioner had no reason to doubt the competence of his attorney. His reliance upon counsel's advice was reasonable and justified. Reliance on legal counsel's advice is reasonable cause.Portable IndustriesInc.,24 T.C. 571(1955);Daisy M. Twinam,22 T.C. 83(1954);Christina de Bourbon Patino,13 T.C. 816(1949). The addition to the estate tax by respondent under section 6651(a) is not sustained and it shall be set aside.

The findings and conclusions herein require recomputations under Rule 50.Decisions will be entered under Rule 50.

Price bid prior to 10 for 1 split. The following bids for post-split shares of Central $20 par value common ↩
25-percent stock dividend, Jan. 29, 1954. ↩
10-percent stock dividend, June 29, 1956. ↩
Unless otherwise stated, all references are to the Internal Revenue Code of 1954, as amended. ↩
Hereinafter, the portion of the trust attributable to Andrew's share of community property transferred to the trust will sometimes be referred to as Andrew's portion. The life interest in this portion will be referred to as the 41.307-percent life interest. The share of the trust attributable to Daisy's transfer of community property will sometimes be referred to as Daisy's portion of the trust. ↩
SEC. 273. HOLDERS OF LIFE OR TERMINABLE INTEREST.

Amounts paid under the laws of a State, a Territory, the District of Columbia, a possession of the United States, or a foreign country as income to the holder of a life or terminable interest acquired by gift, bequest, or inheritance shall not be reduced or diminished by any deduction for shrinkage (by whatever name called) in the value of such interest due to the lapse of time. ↩