ON MOTION FOR REHEARING. On motion for rehearing respondents urge a point not presented[8] on the original argument of the case. They now contend that the evidence was sufficient to support the conclusion that the transfers made on February 13, 1934, and March 5, 1934, were "intended to take effect in possession or enjoyment at or after such death," within the meaning of section 10400.1, paragraph 3, Revised Codes, hence are subject to the transfer tax.
If it can be said that the transfers here in question were intended to take effect in possession or enjoyment at or after death, then, of course they would be subject to the transfer tax. (Estate of Oppenheimer, 75 Mont. 186, 243 P. 589, 44 A.L.R. 1470.) The record does not support the conclusion that the transfers were intended to take effect in possession or enjoyment at or after death. They were both recorded March 7, 1934. Section 10400.1, paragraph 8, provides in part that "all transfers of property real, personal, or mixed, or of any interest therein, coming within the provisions of this section shall be prima facie proof, for the purposes of this Act, to have been made as of the date upon which the papers evidencing such transfer are recorded," etc.
It is noteworthy that the federal statute, identical with ours so far as the point we are discussing is concerned, has been construed as making transfers taxable or not dependent upon *Page 339 whether title was divested at or after death or during the lifetime of the grantor. It has been held that if title passed beyond recall during the lifetime of the grantor, the transfer is not taxable even though the donee does not come into the actual enjoyment of the property until the death of the donor. (Tait v. Safe Deposit etc. Co., (4 Cir.) 74 F.2d 851.) Whether we would apply that interpretation to our statute need not now be determined. The record does not disclose that the donee did not have possession and enjoyment of the property before the death of the grantor.
It is true that after the transfer, as before, the property was assessed in the name of Mr. Blankenbaker, and he alone made an income tax return, which the court found included the income from the property in question. The record discloses that Mr. Blankenbaker acted as agent for his wife in the management of other lands owned by her, as well as that involved in the two transfers. They used their lands together and had a joint bank account against which both were free to write checks. All the proceeds of the ranching operations were placed in the joint account.
When it is remembered that the transfers were made by husband to wife, and where at all times before and after the transfers they ran their affairs jointly as here, it cannot be said that the record warrants a finding that the transfers were intended to take effect in possession and enjoyment only at or after death.
The petition for rehearing is denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, ERICKSON and ARNOLD concur.
Rehearing denied December 23, 1939. *Page 340