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