Untitled Texas Attorney General Opinion

                                               R-363

                  EATT~R~Y              GENERAL

                          OPTEXAS




                        June 24, 1947

Honorable Qeorge H. Sheppard
Comptroller of Pub110 Aacounts
Auatln, Texas            opinion        NO. V-264
                               Re:   Whether or not under
                                     submitted facts a real
                                     property transfer mede
                                     leaa than tvo veara be-
                                     fora decedent's  death
                                     la subject to Inheritance
                                     tax by virtue of Article
Dear Sir:                            7117, B.C.S.
          You have asked ior an opinion from this Depart-
ment aa to vhether or not the property described in your
request la subject to inheritance    tax by virtue  of Article
              we quote the follovlng    rrom your letter   of
igli   Kf%47:
           "Nr. Albert 1. Bitter died a resident
     o? Bexar County on Januaq 23, 1946, and at
     the proper tlw an lnherltance    tax report
     vaa filed for his estate.    We are nai examln-
     log the report and In our lnveatlgatloa     ve
     have found that the decedent In September of
     1944, by deed .aonveyed to the Frlara of the
     Atonement, Iuc., a religious   orgenlaatlon    In
     Rev York, 943.45 acrea or land In Bexar Count*,
     and in conalderatlon  thereo? aald Frlara of the
     Atonement, Inc. agreed to erect tvo ahumhea at
     a coat oi not leaa than $35,000.00 eaah.       The
     time and plaae, aa ~011 aa the plana for erea-
     tion o? aald ahurchea, are at the dlaaratlon      of
     the said Friar8 of the Atonement, Ina.
                'Furthemore,  the Friara of tha Atonement,
     Inc.       promlaea and agrees to pay to the lald Al-
     ;;z        f. Bitter the sum of 4250.00 per month ior
            .
           The aopy of the instrument vhlah you enclose and
to whlah you refer aa "the deed" falls to ahov a place for
the grantor's  rignature.  From the faata at our dlapoaal
Honorable   George H. Sheppard - Page 2


we aannot aaaertain whether or not “the deed” woo proper-
ly exeauted and delivered   in Oompllance with the requlre-
menta of Artlale 1288, R.C .S.; however, we will aaaume
for the purpose ot answering your question that there waa
an absolute’ and valid conveyanaa by Albert M. Bitter to
the Friars of Atonem&t, Inc. of all of his lntereat     in
the property described by the instrument.
           Prior to 1939 there waa no provision  in our
statutes f’or taxing transfera made “in contemplation    of’
death”.  At that time the legislature  lnaarted in Article
7117, Ch. V, Title 122, R.C.B., the following   provision:
              "Any transfer made by a Brentor,     vendor
       or donor, whether by deed, grant, sale or
       gift,   shall,   unless shown to the contrery,     be
       deemed to have been made In contemplation         of
       death and aubjeat to the same tax aa herein
         rovlded,   if such transfer   is mada within two
       P 2)  years  prior  to the death  of the grentor,
       vendor, or donor, of a wterlal       part of hla ea-
       tate, or If the transfer wde within auah
       period la In the nature of a fkal       dlatrlbu-
       tlon OS property and without adequate valua-
       ble aonalderetlon.”
            This provision  waa retained    unchanged when Art-
icle   7117 waa aga.ln amended In 1945.
            The source of wny of the provlalona          of Chapter
V, entitled   “Iuherltanoe    Tax”, lies in the Federal’ Eatate
Tax Act, 26 U.S.C.A. Int. Rev. Code, Ch. 3.           The preaump-
tlon la that the leglalature       knew of’ the oonatructlon
which had been given theae provlalons        prior to their adop-
tion and therefore     intended to adopt the statute as oon-
atrued by the Federal Courts.        Blackman v. Hanaen, 140 T.
536, 169 S.W. 2d 962, citing      Board of Water Engineers v.
MolCnl~ht 111 Tex. 82 229 9. .
n*&          other auth<lea     Tihri        Ezi,“,“k;     iedzl
caaea decided under Section 611 (c) of the Federal Aot
from which those parts of Article        7117 which are deolaive
of thla question are dravn, muat be considered.            Bar need
our oonalderetlon    be limited to those Federal case8 which
were decided prior to 1939; for lnaamuoh aa our oourta
have not aa yet construed that part of the ‘39 amendment
whloh provides that certain trauafera if wde In aontempla-
tlon of death are taxable,      the recent pronouncamenta of
the Federal Courts are highly persuasive.
Honorable   George B. Sheppard - Page 3


            Section 811 of Title 26, U.S.C.A., provides
that there shall be included In valuing the gross estate
of a decedent “all property,    both real and personal,  tan-
gible and intangible,    wherever altuated except real pro-
perty altuated outside of the United Statea . . .” to
the extent of the decedent ‘a interest,    aa set out In the
aubdlvlalons   which follow.
Subdivision  (c), “Tranafera in contemplation    of,   or tak-
ing effect at death”, reads aa follows:
            “To the extent of any interest    therein
     of vhioh the decedent has at any time msde
     a transfer,    by trust or otherwise,   in con-
     templation o? or intended to take effect       in
     poaaeaalon or enjoyment at or after hi8 death,
     or of which he has at any time wde a trana-
     for, by trust or otherwise,      undar whlah he
     haa retained for hi8 life or Sor any period
     not ascertainable    without referenae to hia
     death or for any period which does not in
     ?act end beiore his death (1) the poaaeaaion
     or enjoyment of, or the right to the lno ome
     from, the property,     or (2) the right, either
     alone or in oonjunotlon with any person, to
     designate the persona who ahall possess or en-
     joy the property or the income themfrom;         ex-
     cept in case of a bone fide sale for an ade-
     quate an4 full oonaldaratlon      in money or money’8
     worth.    Any transfer   of a wterlal   part o? hi8
     property in the nature of a final dlapoaltlon
     or dlatrlbutlon    thereof,  wde   by the deoedent
     within two year8 prior to hla death without ouch
     aonaldaratlon,    ahall, unleaa ahown to the oon-
     trery, be doomed to have been wde in aontampla~
     tion of death within the meaning of thla rub-
     ohaptar,”
            A atriklng   and important dl?feranaa betwean tha
 uoted prowlalona     of Artiola 7117 and thoaa o? Ueation
1 11 (a) lie8 in the foot that under the Fedora1 lav “83,
tranafar” whloh the dacadant haa “at a
truvlalf     wda “In oontemplatlon -j&&&y@
                                   o           !gp;,:‘,
Statute la allant with regard to the taxing of %y trann-
iera’ In oontamplatlon of daath exoept thoaa wde        within
two (2) years prior to the death of tha gmntor,    vandor,
or donor’.
Honorable    George H. Sheppard - Page 4


             The trensfer   In question here was w4e within
the two year period.       The Fed&al aaaea which have dealt
with the a~~lloatlon      of the rebuttable   weauaMlon   (ao
olaaalfle4~in    wny oaaea fdr example, ir.3. v. Welli
283 U.S. 102, 51 3. Ct. 447; Rea v. Helner, b F ( 2& 389;
Mgera v. Magruder, 15 F. Supp. WM) un4or the Federal law
an4 whiah were decided before 1939 should therefore        be de-
alalve unleaa other w jor variations        exist.  It ahould be
note4 at the outset, however, that those oaaea dealing
with transfers    in onntamplatlon of death w4e “at any tlms”
are ln4lspenaable     to anx study of the meaning of the phrase
“contemplation    of death as coastrued by the Federal aourta.
          Let ua then examine the transfer   w4e by Mr. Al-
bert M. Bitter to the Friars of the Atonement, Inc. In the
light of the f oregolng general atatementa .
           First of all here we have a ‘trenafer”   “wde by
a grantor ’ “by deed ” “within two (2) years prior to the
death of the grantor’.    30 muoh la clear an4 ln4laputable.
            The prellmlnary  lnharltanoo tax report from
your files   and other Information whloh you have given us
eatabllshea   that the value of the property tranaierred
vas approxlwtely     $80,000 an4 that the estate left at
death by Albert R. Bitter vaa worth approxlwtely      $35,000”.
Thus at first   glanoe there would seem to have been a trana-
for “of a wterlal     part” of Albert M. Bitter88 eatete.
          However. the atatlatloa   ooatplled by Mr. Edmund
W. Pavenatedt and-given la the very e%oellen% artlale    Taxa-
tion of Trenafers                                A Pro osa7
                                                 &
                             pinion, would Indicate other-
wise.  Mr. Pavenatedt says that:
           f’Aa far aa ooncerna the vague Gequlre-
     q entthat the transfer    must be of a 8wteria1
     part* of decedent ‘8 property,   the 137 oases
     whloh mention the proportion    o? the gift to
     the total eatate show the following    meanlng-
     leaa results :
Honorable   ffeorge H. Shopper4 - Page 5


                          “Gifts held to      fflfta held
                           be not in oon-     to be in
                           temp~atlon of      0 ontempla -
                           death              tlon of death
                                  8
                                 21
                                 18
                                 21
                                  6

                                  8
                                  6
                                  8

            Thus there would seem to ba no one guiding
Federal conatruotlon     of thla part of the statute whloh
oould be pre8Umad to have ‘been adoptad at the time the
Texas statute was auaoted; nor wy       ombe  drawn by bay
of parauaslve analogy from thq later Federal aadea.
Tha failure   of the Federal Court8 tb give more oonaldsra-
tlon to the statutory requirement of the “wtarlallty”          of
the part tmnafarred      la, in the wrlter~a opinion,   aaally
explainad.    In general the rebuttable    pr~aumptlon created
by the Federal statute adds little      to the ouatowry   pre-
sumption In favor of the oorreotnaaa of clny 4etermlnatlon
wda by the Commlaaloner.
Death, (previously    olted);
TTTj-54 3. Ct. 8; Commiaai
249; 320 U.S. 467.
far regardleaa  of Its prop
the total estate la taxable    if wde in oontemplatlon     of
death, an4 alnce the finding of “taxability”      by the Com-
q laaloner  reaulta in the aame allocation    of the burden of
proo? aa doer the olauae which oraatea the rebuttablq       pre-
aumptlon, there la little    axouae for wklng “wterlalltyw
a 4aolaiva faator when the transfer     oaoura within the two
year period.     To do ao would result in wklng it more dlf-         P
floult   to Impoae + tax on transfers   wda during the very
period within whloh tranafera    ara preaumptlvaly wda in
contemplation    of death.
            Under the Texas atatute, however,    the only tram-
fara vhlah are tamble at all are tnoae althar OS “a w-
terlal   part” of the eatate or “In the nature o? a final
dlatrlbut%on    of property”.   Thbrefore,  the “wter1811tf   d
the part trenaferred     aeema an lnsaaapabla requialte   to
tha lmpoaltlon of tha tax where the tranafar la not aa-
railed aa “being in tha nature of a final dlatrlbutlon       at&“.
Honorable   George R. Sheppard - Page 6


             This De~rtme~~'a   qpinlon o-6678