Docket No. 27471.
Charles J. Beise, Esq., for the petitioner. Melvin Bruck, Esq., for the respondent.
Petitioner agreed to transfer to her husband certain properties he had given her during their married life upon the assurance of the husband that a property settlement agreement satisfactory to petitioner would be executed. Subsequently a satisfactory property settlement agreement was executed and the transfers were made. Respondent determined that the properties transferred were gifts and that a deficiency in gift tax was due. Held, the transfers were for an adequate consideration in money or money's worth and were not gifts. Charles J. Beise, Esq., for the petitioner. Melvin Bruck, Esq., for the respondent.
The respondent determined a deficiency in gift tax for 1946 in the amount of $2,233.19. The issues for decision are: (1) Was the transfer of certain property by petitioner to Charles Burton Orchard, her then husband, a taxable gift; (2) if the transfer is a gift, is the amount of gift tax paid by the donee of the gift pursuant to an oral agreement antedating the gift deductible in determining the amount of the net taxable gift; (3) is the expense incurred in transferring certain stocks from the donor to the donee deductible in determining the net gift; and (4) what is the correct market value of certain securities included in the transfer?
Petitioner claims that there is an overpayment of gift tax in the amount of $6,953.30.
Some of the facts were stipulated.
FINDINGS OF FACT.
The stipulated facts are so found and are incorporated herein.
Petitioner was formerly known as Ruby Grigg Orchard and, in 1946, was a resident of Pitchfork, Wyoming. Her Federal gift tax return for 1946 was filed with the collector of internal revenue for the district of Wyoming.
Petitioner and Charles Burton Orchard (hereinafter referred to as Orchard) were married in 1931. They had one child born on December 22, 1943.
With the outbreak of hostilities in 1941, Orchard contemplated entering military service, and petitioner suggested she would like to have him divide all of his holdings with her. Orchard consulted his tax advisor who advised him that there were tax advantages to be derived therefrom; and, after many discussions between petitioner and Orchard, he gave petitioner, during the years 1943, 1944, and 1945, substantially one-half of his net worth.
Orchard entered military services on May 18, 1945, and, upon his return from the Army on November 29, 1945, he was informed by petitioner that she wanted a divorce. Thereafter, except for short intervals in the fall of 1945, petitioner and Orchard lived separate and apart at the request of the petitioner. On October 14, 1946, at Worland, Wyoming, Orchard, in the presence of his attorney, confronted the petitioner with a statement of facts concerning her conduct and insisted that he have a divorce. He also insisted that as a first step in working out a property settlement agreement the petitioner return to him the property he had given her in past years. Petitioner was unwilling to return such property to Orchard until she was assured that she would would receive a fair property settlement agreement. The parties discussed alimony and support money as well as whether a gift tax would be involved in the transfer. Orchard agreed to pay any gift tax, and the question as to whether or not a return should be prepared was to be left up to a firm of tax advisors and accountants. Before petitioner would sign any document transferring the property to Orchard, Orchard's attorney had to assure her that he would work out a property settlement agreement acceptable to her.
On the same date, October 14, 1946, at Worland, Wyoming, petitioner signed and delivered to Orchard a document entitled ‘Bill of Sale and Deed of Gift,‘ the expressed intent of which was to convey back to Orchard all of the property petitioner had received from him. The only consideration recited for this conveyance was a nominal monetary consideration of $10. The document recites that the petitioner ‘has bargained and sold, and by these presents does grant and convey unto‘ Orchard certain properties. It also states ‘It is my intent, purpose and desire to make a complete, irrevocable, and absolute gift of each and every item of said property to the said Chas. Burton Orchard, and I authorize and empower the said Chas. Burton Orchard as my attorney in fact to execute any and all instruments to take any action necessary to vest title thereto in himself.‘
From October 14 until October 22, 1946, petitioner and Orchard continued negotiations to arrive at a property settlement. On October 23, 1946, petitioner, Orchard, and their respective attorneys met at Casper, Wyoming, in the office of petitioner's attorney to discuss the entire matter since the parties had previously agreed that no property settlement agreement would be signed until petitioner's attorney had made an independent review of the entire transaction. On the same date, mutual disclosures of the property owned by petitioner and Orchard were made, and Orchard produced a list of all property belonging to petitioner on that date which Orchard had prepared from his records. He also produced a list of property belonging to him on that date which was also prepared from his records. The negotiations leading to the property settlement agreement were hostile in character, and a settlement was arrived at only as a result of many conferences.
On that date, October 23, 1946, petitioner and Orchard signed a property settlement agreement for the purpose of settling and adjusting their respective marital rights, disposing of property, and providing for monthly support of petitioner and the child and the custody and control of said child. The agreement provided, among other things:
1. The Wife shall be the owner of all household furniture and furnishings heretofore owned or possessed by the Husband and Wife, together, free and clear of any liens and encumbrances.
3. The Wife is now in the possession of the sum of Twenty-Five Thousand Dollars ($25,000.00) heretofore given to her by the Husband which said sum shall be retained by her for her use and benefit.
4. So long as Wife shall live, until her remarriage, and during the minority of said child, the Husband agrees to deposit in Wife's checking account at The First National Bank of Denver, Colorado, commencing December 1, 1946, and on the first day of each and every month thereafter:
(a) The sum of $300.00 if during the preceding month the Wife shall have had the custody of said minor child, as hereinafter provided, for one or more days.
(b) The sum of $240.00 if during the preceding month the Wife shall not have had the custody of said minor child, as hereinafter provided, for one or more days.
(c) The sum of $240.00 upon said minor child reaching the age of 21 years, or upon the marriage of said minor child prior to her attaining the age of 21 years.
5. All monthly payments to Wife shall cease; (1) on the date of her death, or (2) on the date of her remarriage; and no further payments shall be made by Husband to Wife save for the benefit of said minor child as hereinafter provided. Upon the remarriage of the Wife and during the minority of said child, or until the marriage of said minor child prior to her attaining the age of 21 years, the Husband agrees to deposit in the Wife's checking account at The First National Bank of Denver, Denver, Colorado, on the first day of each and every month after such remarriage:
(a) The sum of $60.00 if during the preceding month the Wife shall have had the custody of said minor child, as hereinafter provided, for one or more days.
(b) no deposit shall be made if during the preceding month the Wife shall not have had the custody of said minor child, as hereinafter provided, for one or more days.
6. For the purpose of providing for the Wife in the event the Husband should predecease her, if at the time of his death Wife has not remarried, and for the further purpose of providing for the support of said minor child, if said minor child has not predeceased the Husband; the Husband covenants and agrees that he will at all times during his lifetime maintain in full force and effect, until the death or remarriage of Wife or until the death of said minor child, a last will and testament securing the payments to said Wife and child, all as hereinabove provided for, and making such payments a first charge against his estate. The Husband further covenants and agrees to furnish Wife with a copy of such portions of said last Will and testament as may be necessary to assure her that this clause is in full force and effect, which said provisions shall constitute the full satisfaction and measure of all obligations of Husband or his estate to Wife or said minor child.
7. The Wife agrees that she will, upon demand, execute any and all papers, documents, powers or attorney, deeds, or other instruments necessary to convey to husband all property heretofore given by Husband to Wife and now standing in Wife's name, save and except said sum of $25,000 hereinabove mentioned.
12. It is further mutually understood and agreed by and between the parties hereto that this agreement is entered into only after considerable negotiation and as a result of much thought and deliberation by and on behalf of each of the parties hereto and with the distinct understanding that it shall be construed as a final settlement between the parties of all property, alimony or other financial rights arising out of the marital contract or otherwise; and is entered into by both parties upon the advice of their respective attorneys after full and complete disclosure by both Husband and Wife as to all property and property rights, owned, controlled or possessed by them; and, after mature deliberation and having in mind the financial status of each of the parties hereto and all property owned, controlled or possessed by them and each of them, the foregoing is declared to be a fair, equitable and just settlement.
13. In the event action for divorce is instituted by either party hereto, this agreement will be exhibited to the Court prior to the entry of any decree, and the parties hereto agree that they will request the Court to include in any decree a recital to the effect that a complete and final settlement has been entered into between the parties and approved by the Court, but that they will request the Court that such a decree will not contain any of the details thereof nor any provision concerning alimony, suit costs or attorney's fees.
14. It is further agreed that this settlement and each and every one of the terms thereof may be enforced against either of the parties hereto by proceedings in the usual form for specific performance of contracts or other appropriate relief, at law or in equity. Should the Husband die and at the time of his death be in default in the performance of any agreement on his part under this contract, the Wife shall be entitled to make and enforce a claim against his estate for all damages sustained by her on account of such default.
On the day the property settlement agreement was signed, petitioner commenced on action for divorce in the District Court at Casper, Wyoming, and a judgment and decree of divorce were entered on October 29, 1946. Said decree contains the following provisions:
That preceding the filing of this case, plaintiff and defendant entered into a written settlement agreement providing for a lump sum payment to the plaintiff in full satisfaction and settlement of all rights which she might have against the defendant or his property for a property settlement or division of property, and also providing specific terms for the support of plaintiff and the support, maintenance, education, medical and dental aid and general welfare of Lorna Ellsworth Orchard, minor child of the parties, which said agreement has been examined by the Court and which the Court finds to be fair, equitable and just.
that the settlement agreement made by the parties and exhibited to the Court be and it hereby is is in all respects and particulars approved, and the terms thereof be and hereby are incorporated herein and made a part of this judgment and decree by this reference thereto.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED * * * and that failure to make any payments required thereby when due shall constitute contempt of Court under this judgment and decree, the same as if the specific amounts required by the terms of said agreement were set forth herein at length, * * *
None of the property described in the Bill of Sale and Deed of Gift from the petitioner to Orchard dated October 14, 1946, was delivered to Orchard on that date, or, with the exception of a deed to a house near Seattle, Washington, dated October 22, 1946, was delivered to Orchard at or after the time of signing the property settlement agreement.
A gift tax return covering the conveyance of the properties mentioned in the Bill of Sale and Deed of Gift of October 14, 1946, was filed with the collector of the internal revenue for the district of Colorado, and Orchard, the donee, paid a gift tax of $6,953.30. Subsequently, petitioner filed a claim for refund of that amount.
The petitioner valued such properties in the gift tax return at $99,116.64 and the respondent, in determining the gift tax deficiency, increased the amount of total gifts to $102,816.64 by increasing the valuation of three lots of securities transferred and by refusing to allow, as partial consideration for the transfers of property, (a) expenses in connection with the transfer of the stock and (b) the gift tax paid by Orchard.
This case presents a somewhat different problem from the usual case of this type in that here the transfer of property was from the wife to the husband and, in addition, it was purportedly transferred by a document called a Bill of Sale and Deed of Gift a few days prior to the execution of the property settlement agreement.
The respondent argues that this is not a transfer of property under a settlement agreement which was subsequently incorporated in a decree of divorce and that a long line of cases decided by this Court, together with the case of Harris v. Commissioner, 340 U.S. 106 (1950), are not in point. He states that the Deed of Gift evidencing the transfer did not recite any adjustment of marital rights or marital property interests as consideration; that the transfer was without consideration other than a nominal monetary consideration; that petitioner was not satisfying or adjusting any legal obligation to her husband imposed upon her by law; that this circumstance, peculiar to this case, differentiates it from the numerous instances of husband-to-wife transfers dealing with alimony, support money, etc., which are typical objects of judicial determination or affirmation. He further contends that the Deed of Gift is complete and absolute on its face; is not contingent or conditional upon any external factor, condition, or happening; and that it specifies its own means of execution by a power of attorney clause. He concludes by stating that the Deed of Gift is plainly a transfer taxable as a gift— a transfer of property for less than an adequate and full consideration in money or money's worth.
SEC. 1002. TRANSFER FOR LESS THAN ADEQUATE AND FULL CONSIDERATION.Where property is transferred for less than an adequate and full consideration in money or money's worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this chapter, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.
The petitioner argues that the execution and deliver of the Bill of Sale and Deed of Gift was not a single, complete, isolated event but that it was a part of the efforts of the parties to effect a divorce and property settlement. She states that the situation here poses a problem containing all of the strong elements of Harris v. Commissioner, supra, and falls within the rationale of that case. In the Harris case, the property settlement provided that (1) it was executed in order to effect a settlement of the respective property rights of the parties ‘in the event a divorce should be decreed,‘ (2) it should be submitted to the divorce court ‘for its approval,‘ and (3) the settlement should not become operative or binding on the parties unless a decree of absolute divorce should be entered in the then pending Nevada action. The Supreme Court held that the ‘source of rights‘ in the property in question there stemmed from the court decree of divorce and not from the settlement agreement of the parties and that it was, therefore, not a transfer subject to gift tax. This case poses no such problem as was before the Supreme Court in the Harris case, and we find it unnecessary to resolve petitioner's argument in this respect because, in our opinion, decision in this case must turn, not on the property settlement and the divorce decree, but on whether the promise of petitioner to transfer certain property to Orchard in return for his promise to execute a property settlement agreement agreeable to her was for adequate consideration.
‘Adequate and full consideration in money or money's worth‘ appearing in section 1002 of the Code has been interpreted as having the same meaning as when it appears in section 812(b) of the Code. This latter section states that relinquishment of marital rights shall not be considered as ‘adequate and full consideration in money or money's worth.‘ See Harris v. Commissioner, supra, and cases cited therein. Such cases are inapplicable in the instant facts because the Bill of Sale and Deed of Gift was not a property settlement. The instrument shows on its face that it is ambiguous, and we should, therefore, consider the facts and circumstances which led up to its execution. It is clear from the surrounding circumstances that petitioner executed the instrument in consideration for Orchard's promise to effect a property settlement. It is clear from such instrument that it contains no provisions setting up a property settlement or relinquishing any marital rights. Until such time as a property settlement agreement was executed by the parties, it would be impossible to say whether there would be a relinquishment of marital rights.
SEC. 812. NET ESTATE.(b) EXPENSES, LOSSES, INDEBTEDNESS, AND TAXES.— Such amounts—For the purpose of this subchapter, a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration ‘in money or money's worth.‘
The facts in this case clearly show that the transactions between petitioner and Orchard were arm's-length transactions between two contracting parties with adverse interests. The petitioner refused to execute the document transferring back to Orchard the properties he had given her during their married life until she had been assured by Orchard's attorney that a property settlement agreement satisfactory to her would be worked out. The negotiations commenced on October 14, 1946, and culminated in a settlement agreement on October 23, 1946. The settlement agreement contained a provision that petitioner would ‘convey to husband all property heretofore given by Husband to Wife and now standing in Wife's name, save and except said sum of $25,000 hereinabove mentioned.‘ On the same day, petitioner commenced an action for divorce, and a judgment and decree of divorce were entered 6 days later. Said decree approved the terms of the settlement agreement and incorporated them in the judgment and decree.
Under such circumstances, we conclude that the Bill of Sale and Deed of Gift constituted an agreement to transfer property by petitioner to Orchard in consideration of Orchard's promise to execute a property settlement agreement in favor of and agreeable to petitioner, and that such consideration constitutes an adequate and full consideration in money or money's worth.
In view of our conclusion on the first issue, it is unnecessary to decide the remaining issues.
Reviewed by the Court.
Decision will be entered under Rule 50.