Untitled Texas Attorney General Opinion

THEATTORNEYGEN~~FCAL OF TEXAS May 21, 1959 Honorable Robert S. Calvert Comptroller of Public Accounts Capitol Station Austin 11, Texas Opinion No. W-629 Re: The proper classification of adopted children of a decedent's:deceased sisters for inherltanoe tax pur- poses. Otherwise stated, do these adopted children come under Class C as stated In Article 7120 V.A.C.S. or Class E~,as prescribed by Article 7122 V.A.C.S. Dear Mr. Calvert: Your request for ,opinioninforms us that Alice McMullen left a net taxable estate of $276,706.34 which passed by Intestacy. One sister, Mrs. Milliron, predeceased Mrs. McMullen and left two adopted daughters, and another sister, Mrs. Mattice, who also predeceased Mrs. McMullen, left an adopted son and an adopted daughter. :Your question is as to which of the two classi- fications for inheritance tax purposes should these adopted children be placed. Article 7122, Class E, is a general classi- fication which includes those not coming under any of the other classes and prescribes a rather .. high schedule of Inheritance taxes. Article 7120, Class C, provides a much lower schedule for the payment of the Inheritance tax. It Is our definite opinion that these adopted children of the deceased sisters of the intestate, Mrs. McMullen, come within the ~more favorable . Honorable Robert S. Calvert, page 2 (w-629) * classification of Class C, as prescribed by Article 7120. Article 7120, Class C, contains the follow- ing language: "If passing to OP for the use of a brother or sister, or a direct lineal descendant of a brother or sister, of th decedent, the tax shall b e ... (Emphazis added) and then follows the schedule of payments. The question, simply stated, boilsdown to this:, Are these adopted chj.ldrenof the deceased sisters of decedent "direct lineal descendants of a brother or sister of the decedent," within the meaning of Article 7120, Class C? To argue that they are direct lineal des- cendants, literally speaking, Is an absurdity, but that Is not the question. The question before us is whether or not they are lineal descendants within the purview of the statute: shall they be regarded as direct lineal de- scendants forinheritance tax purposes under the statute? We consider that this is no longer an open question in this state because the Supreme Court on several occasions has held that such adopted children are to be regarded as direct lineal descendants under similar statutes. This point was precisely decided by the Supreme Court in the case of State ex rel Walton v. Yturrla, 204 S.W.315. The 'opinion of the Court, after first stating that such adopted children are not direct lineal descendants (a biological fact which Is beyond dispute) then proceeds to hold that they are direct lineal descendants within the meaning of a statute similar to . Article 7120, Class C. We quote from the Yturrla case: "Insofar as it applies to the questions presented by this record, Article 7487, R.S., subjects to a tax all .property within the jurisdiction of the state upon . . Honorable Rob~ertS. Calvert, page 3.(WW-629) , its passing by will or by descent to or for the use of any personi 'except the father, mother, wife or direct lineal descendants, of the testator,' ..,~(o) As it was the nrivileae of a child of'Danle1 Yturria bder A&lcle 7487, to ha& the property within the .jurisdlctionof this state pass to him, by will or descent, without payment The case of Decker v. Williams, 215 S.W.2d 679, error ref., Is precisely in point. The syllabus correctly reflects the holding of the Court and we quote therefrom: "Under the inheritance tax statute taxing at lowest rates, bequests passing to 'or for the use of husband or wife or any 'direct lineal descendant' of husband or wiv ' quoted phrase means lineal descendants of a pre-deceased spouse as nell as of,a surviving spouse, Including adopted daugh- ter of testator's pre-deceased wife." -(Emphasisadded) This line of authority has never been over- ruled so far as we are able to determine and it is still the law. You are therefore advised that these adopted children should be classified for inheritance tax purposes under Article 7l2O, Class C. Article 468, V.A.C.S., Seetlon 9 of OUP adoption statutes provides that all adopted children shall Inherit from the adopted parents and shall thereafter be regarded and held to be, for every purpose, the child of Its parent or parents by adoption. The broad term 'for every purpose' surely must include inheritance tax purposes. Honorable Robert S. Calvert, page 4 ww-629) (‘ SUMMARY "Adopted children of the decedent's deceased sisters are 'direct lineal descendants' of the deceased sisters within the meaning of' this phrase as used in Article 7120, Class e, and must therefore be,classlfled for inheri- tance tax purposes under said article." Yours very truly WILL WILSON Attorney General Assist&t WRS:jlw '1 APPROVED: OPINION COMMITTEE George P. Blackburn, Chairman Ray Loftln Henry Braswell Morgan Nesbitt APPROVED FOR ATTORNEY GENERAL By: W. V. Geppert