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Estate v. Commissioner of Internal Revenue

United States Court of Appeals, Seventh Circuit
Jul 25, 1972
465 F.2d 62 (7th Cir. 1972)

Opinion

No. 71-1716.

Argued June 13, 1972.

Decided July 25, 1972.

Gary B. Simon, Milwaukee, Wis., for petitioner-appellant; Levin, Blumenthal, Herz Levin, Milwaukee, Wis., of counsel.

Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, William A. Friedlander, Michael L. Paup, Attys., Tax Div., Dept. of Justice, Washington, D.C., for respondent-appellee.

Appeal from the United States Tax Court.

Before FAIRCHILD and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge.

Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.


At death decedent held assets as custodian for his minor children under the Wisconsin Uniform Gifts to Minors Act. Decedent had been donor of the assets. The tax court held the assets to be includible in decedent's estate under both sections 2036 and 2038(a)(1) of the 1954 Internal Revenue Code. The facts and reasoning are set forth in the tax court decision. We affirm.

Now §§ 880.61-.71, 1971 Wis.Stats., formerly §§ 319.61-.71, Stats.

55 T.C. No. 90.

26 U.S.C. § 2036, 2038(a)(1).

On appeal, taxpayer has again stressed the contention that although the statutory terms of his custodianship reserved to him the power to use the assets to discharge his own obligation of support (thus bringing § 2036 into play) and to turn the assets over to the children before their majority (thus arousing § 2038), there is evidence which so clearly establishes his intention not to do either that he had effectively foreclosed the existence of such powers. We do not agree that the subjective and unilateral intentions claimed would supersede the statutory terms of custodianship.

In Stuit v. Commissioner of Internal Revenue, 452 F.2d 190 (7th Cir., 1971), assets of a custodianship under the Illinois uniform act were held, by virtue of § 2038, to be includible in the estate of the donor custodian. We said the decedent had the power to distribute the entire custodial property to the donees and terminate the arrangement. We find no adequate distinction.

The judgment is affirmed.


Summaries of

Estate v. Commissioner of Internal Revenue

United States Court of Appeals, Seventh Circuit
Jul 25, 1972
465 F.2d 62 (7th Cir. 1972)
Case details for

Estate v. Commissioner of Internal Revenue

Case Details

Full title:ESTATE OF HARRY PRUDOWSKY, DECEASED, VIVIAN PRUDOWSKY, ADMINISTRATRIX…

Court:United States Court of Appeals, Seventh Circuit

Date published: Jul 25, 1972

Citations

465 F.2d 62 (7th Cir. 1972)

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