Therese Hahn v. Commissioner

110 T.C. No. 14

UNITED STATES TAX COURT

THERESE HAHN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 17210-96. Filed March 4, 1998.

P and her husband (H) purchased property in 1972
as joint tenants with right of survivorship. P became
the sole owner of the property upon H's death in 1991.
H's Federal Estate Tax Return reported 100 percent of
the date of death value of the property as H's interest
therein. P sold the property in 1993 and, pursuant to
secs. 2040(a) and 1014(b)(9), I.R.C., included 100
percent of the date of death value of the property in
calculating her basis. R determined that, because H
died after Dec. 31, 1981, pursuant to sec. 2040(b)(1),
I.R.C., only 50 percent of the date of death value of
the property was required to be included in H's gross
estate and, pursuant to sec. 1014(b)(9), I.R.C., P
should receive a step-up in basis for only 50 percent
of the value of the property.
Held: Amendment to definition of "qualified joint
interest" in sec. 2040(b)(2), I.R.C., did not expressly
or impliedly repeal effective date of 50-percent
inclusion rule of sec. 2040(b)(1), I.R.C., which
 -2-

therefore does not apply to spousal joint interests
created before Jan. 1, 1977.

K. Bruce Friedman, for petitioner.

Laurel M. Robinson, for respondent.

OPINION

COHEN, Chief Judge: This case was assigned to Special Trial

Judge John F. Dean pursuant to section 7443A(b)(4) and Rules 180,

181, and 183.1 The Court agrees with and adopts the opinion of

the Special Trial Judge, which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

DEAN, Special Trial Judge: This case is before us on

petitioner's motion for summary judgment and respondent's cross-

motion for partial summary judgment. Respondent determined a

deficiency in petitioner's 1993 Federal income tax in the amount

of $50,123 and an accuracy-related penalty under section 6662(a)

in the amount of $10,025.

The issue for decision concerns petitioner's basis in

property which had been held by petitioner and her now-deceased

husband in joint tenancy with right of survivorship. To resolve

this issue, we must decide whether the 1981 amendment of the

definition of "qualified joint interest" in section 2040(b)(2)

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code and all Rule references are to the Tax
Court Rules of Practice and Procedure.
 -3-

expressly or impliedly repealed the effective date of section

2040(b)(1). Petitioner resided in Oakland, California, at the

time she filed her petition.

A motion for summary judgment is appropriate "if the

pleadings, answers to interrogatories, depositions, admissions,

and any other acceptable materials, together with the affidavits,

if any, show that there is no genuine issue as to any material

fact and that a decision may be rendered as a matter of law."

Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party

bears the burden of showing that there is no genuine issue of

material fact, and factual inferences are viewed in the light

most favorable to the nonmoving party. United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962); Preece v. Commissioner, 95 T.C.

594, 597 (1990).

The opposing party cannot rest upon mere allegations or

denials but must set forth specific facts showing there is a

genuine issue for trial. Rule 121(d). The existence of any

reasonable doubt as to the facts will result in denial of the

motion for summary judgment. Hoeme v. Commissioner, 63 T.C. 18,

20 (1974). We set forth a summary of facts relevant to our

discussion that do not appear to be in dispute; the facts are

stated solely for purposes of deciding the motions and are not

findings of fact for this case. See Fed. R. Civ. P. 52(a);

Sundstrand Corp. v. Commissioner, supra at 520.
 -4-

Background

On June 8, 1972, John P. Hahn, petitioner's husband, signed

a subscription agreement to purchase shares in Fifty CPW Tenants

Corporation (CPW) for a purchase price of $44,000. On

February 15, 1973, 440 shares of CPW were issued to petitioner

and her husband as joint tenants with right of survivorship.

These shares were allocated to apartment 10C, located at 50

Central Park West, New York, New York.

On August 19, 1991, Mr. Hahn died, and petitioner became the

sole owner of the CPW shares. On July 8, 1993, the estate of

John P. Hahn filed a Federal Estate Tax Return reporting 100

percent of the value of the CPW shares on the date of Mr. Hahn's

death as the value of his interest in the shares. The value of

the shares on the date of Mr. Hahn's death was reported at

$700,000.

Petitioner sold the CPW shares on September 28, 1993. On a

Form 2119 (Sale of Your Home) attached to her 1993 Federal income

tax return, petitioner reported a selling price for the CPW

shares of $720,000 and a basis of $758,412.2 Accordingly,

petitioner reported no gain on the sale.

In a notice of deficiency issued June 17, 1996, respondent

determined, inter alia, that, pursuant to section 2040(b)(1),

2
On a statement attached to her return, petitioner
calculated her basis as follows: $700,000 date of death value,
$572 of transfer fees, $43,200 of commissions, $13,140 of
transfer taxes, and $1,500 for asbestos removal.
 -5-

petitioner could receive a stepped-up basis for only 50 percent

of the date of death value of the CPW shares. Accordingly,

respondent determined that petitioner had a basis in the CPW

shares of $428,340, composed of the following amounts: One-half

of the original cost basis ($22,000), one-half of the date of

death value ($350,000), $43,200 of commissions, and $13,140 of

transfer taxes.3 From the $720,000 selling price, respondent

subtracted the $428,340 basis and allowed the section 121 one-

time exclusion of $125,000 of gain from the sale of a principal

residence to determine a gain on sale of $166,660.

Discussion

Petitioner argues that because the joint tenancy was created

prior to January 1, 1977, and because she provided no part of the

consideration for the purchase, the contribution rule of section

2040(a) is applicable and, consequently, under section 1014, she

is entitled to a stepped-up basis in 100 percent of the property.

Respondent argues that because petitioner's husband died after

1981, as a matter of law the 50-percent inclusion rule of section

2040(b)(1) is applicable and that petitioner is entitled to a

stepped-up basis under section 1014 in only 50 percent of the

property. Alternatively, respondent argues that if the

contribution rule of section 2040(a) is applicable, petitioner

3
Respondent did not include the $572 of transfer fees and
$1,500 for asbestos removal in petitioner's basis.
 -6-

has not proven that her husband provided all of the consideration

used to purchase the property.

The only evidence petitioner has submitted concerning the

original consideration used to purchase the CPW shares is her

sworn affidavit that her husband provided the entire

consideration. Petitioner also notes that she and her husband

resided in New York, a noncommunity property State, at the time

of purchase. Assuming arguendo that the contribution rule of

section 2040(a) is applicable, we are still left with the

unresolved factual dispute as to the source of the consideration

used to purchase the shares. We do not resolve disagreements

over relevant factual issues in a summary judgment proceeding,

and, consequently, petitioner's motion for summary judgment is

denied. See Espinoza v. Commissioner, 78 T.C. 412, 416 (1982);

Hoeme v. Commissioner, supra at 20.

Respondent's motion, however, does not implicate any factual

issues. Respondent argues that, pursuant to section 2040(b),

petitioner is entitled to a stepped-up basis in only 50 percent

of the CPW shares, regardless of whether petitioner or her

husband furnished the consideration for the purchase.

Accordingly, a decision on respondent's motion may be rendered as

a matter of law.

Section 1001 governs the determination of gains and losses

on the disposition of property. Commissioner v. Tufts, 461 U.S.

300, 304 (1983). Generally, gain or loss from the disposition of
 -7-

property is measured by the amount realized less the adjusted

basis of the property. Sec. 1001(a).4 Section 1014 generally

provides that the basis of property acquired from a decedent is

the fair market value of the property at the date of the

decedent's death or on the alternate valuation date. Sec.

1014(a). A surviving joint tenant, however, is considered to

have acquired property from the decedent only to the extent that

the property was required to be included in the estate of the

deceased joint tenant. Sec. 1014(b)(9). Correspondingly, the

portion of the property not included in the decedent's estate

retains the survivor's adjusted basis. Thus, determination of

petitioner's basis in the CPW shares hinges on the portion of the

property required to be included in her husband's estate.

Section 2040 governs the value of jointly-owned property to

be included in a decedent's estate. Before 1977, section 20405

4
Losses attributable to the sale of a family residence,
however, are nondeductible personal losses. Sec. 262; Austin v.
Commissioner, 35 T.C. 221 (1960), affd. 298 F.2d 583 (2d Cir.
1962); Doerries v. Commissioner, T.C. Memo. 1991-396; sec. 1.262-
1(b)(4), Income Tax Regs.
5
Sec. 2040 of the Internal Revenue Code of 1954 provided:

SEC. 2040. JOINT INTERESTS.
The value of the gross estate shall include the
value of all property (except real property situated
outside of the United States) to the extent of the
interest therein held as joint tenants by the decedent
and any other person, or as tenants by the entirety by
the decedent and spouse, or deposited, with any person
carrying on the banking business, in their joint names
and payable to either or the survivor, except such part
(continued...)
 -8-

provided that the gross estate includes the value of all property

held at the time of a decedent's death by the decedent and

another person in a joint tenancy or tenancy by the entirety,

except such part of the entire value that is attributable to the

amount of consideration in money or money's worth furnished by

such other person. Thus, the rule established a "contribution

test", whereby the estate of the deceased joint tenant must

generally include the value of the entire property less the

portion of the property attributable to the consideration

furnished by the surviving joint tenant. The statute creates a

rebuttable presumption that the value of the entire property is

includable in the deceased joint tenant's estate, and the burden

5
(...continued)
thereof as may be shown to have originally belonged to
such other person and never to have been received or
acquired by the latter from the decedent for less than
an adequate and full consideration in money or money's
worth: Provided, That where such property or any part
thereof, or part of the consideration with which such
property was acquired, is shown to have been at any
time acquired by such other person from the decedent
for less than an adequate and full consideration in
money or money's worth, there shall be excepted only
such part of the value of such property as is
proportionate to the consideration furnished by such
other person: Provided further, That where any
property has been acquired by gift, bequest, devise, or
inheritance, as a tenancy by the entirety by the
decedent and spouse, then to the extent of one-half of
the value thereof, or, where so acquired by the
decedent and any other person as joint tenants and
their interests are not otherwise specified or fixed by
law, then to the extent of the value of a fractional
part to be determined by dividing the value of the
property by the number of joint tenants.
 -9-

of showing original ownership or contribution to the purchase

price by the surviving joint tenant falls upon the estate.

Estate of Heidt v. Commissioner, 8 T.C. 969 (1947), affd. per

curiam 170 F.2d 1021 (9th Cir. 1948); Estate of Balazs v.

Commissioner, T.C. Memo. 1981-423, affd. without published

opinion 693 F.2d 134 (11th Cir. 1982).
 -10-

In 1976, subsection (b) of section 2040 was added to the

Code by section 2002(c)(1) of the Tax Reform Act of 1976 (TRA

76), Pub. L. 94-455, 90 Stat. 1520, 1855.6 The 1976 amendment

created a special rule where the joint tenants were husband and

wife. If the interest was a "qualified joint interest",7 only

one-half of the value of the property owned in joint tenancy was

includable in the decedent's gross estate, without regard to

6
As enacted in 1976 sec. 2040(b) read:

(b) Certain Joint Interests of Husband and Wife.--
(1) Interests of spouse excluded from gross
estate.-- Notwithstanding subsection (a), in the case
of any qualified joint interest, the value included in
the gross estate with respect to such interest by
reason of this section is one-half of the value of such
qualified joint interest.
(2) Qualified joint interest defined.--For
purposes of paragraph (1), the term "qualified joint
interest" means any interest in property held by the
decedent and the decedent's spouse as joint tenants or
as tenants by the entirety, but only if--
(A) such joint interest was created by the
decedent, the decedent's spouse, or both,
(B)(i) in the case of personal property, the
creation of such joint interest constituted in
whole or in part a gift for purposes of chapter
12, or
(ii) in the case of real property, an
election under section 2515 applies with
respect to the creation of such joint
interest, and
(C) in the case of a joint tenancy, only the
decedent and the decedent's spouse are joint
tenants.
7
A "qualified joint interest" was defined as a joint tenancy
between husband and wife, or a tenancy by the entirety, where (1)
such interest was created by the decedent, the decedent's spouse,
or both, and (2) the creation of the joint interest must have
been a gift subject to Federal gift tax.
 -11-

which spouse furnished the consideration to acquire the jointly

held property.8 TRA 76 sec. 2002(d)(3), 90 Stat. 1856, provided

an effective date for the new 50-percent inclusion rule of

section 2040(b), making it applicable to "joint interests created

after December 31, 1976."9

Congress amended section 2040 again in 1978, with the

addition of subsections (c), (d), and (e). Revenue Act of 1978,

Pub. L. 95-600, secs. 511(a) and 702(k)(2), 92 Stat. 2763, 2881,

2932. Essentially, these subsections provided a mechanism

whereby an election could be made to treat joint interests

created prior to 1977 as "qualified joint interests" subject to

the 50-percent inclusion rule of section 2040(b).10

8
By way of a "clerical amendment", sec. 2002(c)(3) of the
Tax Reform Act of 1976 (TRA 76), Pub. L. 94-455, 90 Stat. 1520,
1856, redesignated the original sec. 2040 as new subsection
2040(a), making it the general inclusion rule for all joint
interests other than "qualified joint interests".
9
Although the effective date was not codified in the U.S.
Code, it was enacted as a section of the public law that was
subsequently codified at sec. 2040 and, accordingly, has the
force of law. See Patten v. United States, 116 F.3d 1029, 1033
n.3 (4th Cir. 1997).
10
Sec. 2040(c) provided for an election to exclude a portion
of the value of jointly owned property used for farming or any
other trade or business based on the material participation of
the decedent's spouse in the activity. Sec. 2040(d) provided an
election to treat joint interests created before 1977 as
"qualified joint interests". Instead of severing and re-creating
the pre-1977 joint interest, a husband and wife could file a gift
tax return reporting a "deemed" gift (resulting from a "deemed"
severance and re-creation of the joint interest). Finally, sec.
2040(e) provided that if a pre-1977 joint interest was actually
severed and re-created by deed, it would nonetheless not be
(continued...)
 -12-

The final relevant amendment to section 2040 took place in

1981. Subsections (c), (d), and (e), which had been adopted in

1978, were repealed. Economic Recovery Tax Act of 1981 (ERTA),

sec. 403(c)(3), Pub. L. 97-34, 95 Stat. 172, 302. The definition

of a "qualified joint interest" in section 2040(b)(2) was

redefined to eliminate the requirement that the creation (or re-

creation) of the joint interest be treated as a gift.11 ERTA

sec. 403(c)(1), 95 Stat. 301-302. However, the operational

provision of section 2040(b)(1), providing for 50 percent

inclusion, was not changed. The effective date provision of the

1981 amendment made these changes applicable "to the estates of

decedents dying after December 31, 1981." ERTA sec. 403(e)(1),

95 Stat. 305.

The issue we face, then, is whether section 2040(b)(1)

applies to joint interests created before January 1, 1977, where

the deceased joint tenant died after December 31, 1981.

10
(...continued)
treated as a "qualified joint interest" unless an election under
subsection (d) was made.
11
As enacted in 1981, sec. 2040(b)(2) provided:

(2) Qualified joint interest defined.--For purposes of
paragraph (1), the term "qualified joint interest" means any
interest in property held by the decedent and the decedent's
spouse as--
(A) tenants by the entirety, or
(B) joint tenants with right of survivorship, but
only if the decedent and the spouse of the decedent are
the only joint tenants.
 -13-

Before 1977, section 2040 merely provided for a contribution

rule to determine inclusion in the gross estate of a joint

tenant. The 1976 amendment provided in section 2040(b)(1) for a

50-percent inclusion rule for "qualified joint interests" (as

defined in section 2040(b)(2)), with the new rule being

applicable to "joint interests created after December 31, 1976."

Joint interests created before January 1, 1977, were still

subject to the contribution rule of section 2040(a). In 1981,

the definition of a "qualified joint interest" contained in

section 2040(b)(2) was changed, effective for "the estates of

decedents dying after December 31, 1981." The effective date of

the operational provision of section 2040(b)(1), however, was not

changed. The question is whether the 1981 amendment to the

definition of "qualified joint interests" in section 2040(b)(2)

somehow modified the effective date provision of section

2040(b)(1).

This issue was addressed in Gallenstein v. United States,

975 F.2d 286 (6th Cir. 1992). That case involved the same

relevant facts and the identical legal issue, namely, the income

tax basis of property held in joint tenancy with right of

survivorship upon the death of the taxpayer's spouse. In 1955,

Mrs. Gallenstein and her husband purchased real property as joint

tenants with right of survivorship. The entire purchase price

derived from Mr. Gallenstein's earnings. Upon her husband's

death in 1987, Mrs. Gallenstein became the sole owner of the
 -14-

property. Approximately 7 months later, she then sold the

property, which had appreciated substantially since its purchase

in 1955. Eventually, on a second amended Federal income tax

return for 1988, Mrs. Gallenstein reported 100 percent of the

date of death value of the property as her basis, resulting in no

capital gain upon its sale.

In opposing her refund suit, the Government argued, as here,

that, pursuant to section 2040(b)(1), Mrs. Gallenstein could

receive a stepped-up basis for only 50 percent of the property.

The Government asserted that the 1981 amendment of the definition

of "qualified joint interests" in section 2040(b)(2) operated to

repeal the effective date of section 2040(b)(1), and therefore

the 50-percent inclusion rule was applicable to Mr. Gallenstein's

estate because he died after December 31, 1981. The Government

pursued this claim along both an express and an implied repeal

theory.

The Court of Appeals for the Sixth Circuit concluded that

the 1981 amendment to paragraph (2) of section 2040(b) did not

act to repeal the effective date of the 1976 amendment creating

"qualified joint interests", and therefore affirmed summary

judgment in favor of Mrs. Gallenstein. The court rejected the

Government's claim that section 2040(b)(2) expressly repealed the

effective date of section 2040(b)(1) by changing the definition

of "qualified joint interests." The court reasoned that an

express repeal can only be found where a subsequent statute
 -15-

expressly states that it repeals a portion of the former statute.

The express repeal of subsections (c), (d), and (e) of section

2040 by the 1981 amendment was deemed persuasive evidence that

Congress did not also intend to repeal subsection (b)(1).

Next, the Court of Appeals concluded that there had been no

implied repeal of the effective date of section 2040(b)(1). It

reasoned that, lacking any evidence showing an affirmative

intention to repeal, an implied repeal can only be found where

two acts are in irreconcilable conflict or where a subsequent act

covers the whole subject of an earlier act. In the court's view,

the two acts here peacefully coexist, as section 2040(b)(1)

applies to a "qualified joint interest" created after 1976, while

section 2040(b)(2) merely redefines a "qualified joint interest"

for estates of decedents dying after 1981.

Furthermore, the court reasoned that because the two

statutes here are not mutually exclusive, it could not be

concluded that the later statute fills the entire area of law,

thereby rendering the prior statute ineffective. The court

dismissed as irrelevant the Government's extensive discussion of

legislative history, finding Congress' failure to change section

2040(b)(1)'s effective date dispositive of the case. The Court

of Appeals' analysis rejecting both express and implied repeal

has since been followed by every other court that has examined

this issue. See Patten v. United States, 116 F.3d 1029 (4th Cir.

1997); Baszto v. United States, 80 AFTR 2d 97-7740 (M.D. Fla.
 -16-

1997); Wilburn v. United States, 80 AFTR 2d 97-7553, 97-2 USTC

par. 50,881 (D. Md. 1997); Anderson v. United States, 78 AFTR 2d

96-6555, 96-2 USTC par. 60,235 (D. Md. 1996).

Express Repeal

Here, respondent begins by pursuing an express repeal

argument. Respondent argues that because section 2040(b)(1) and

(b)(2) are "interdependent", the alteration of subsection (b)(2)

in 1981 operated to expressly repeal the effective date of

subsection (b)(1). Yet respondent points to no language from the

1981 amendment that specifically repeals the effective date of

subsection (b)(1), and indeed there is none. See Patten v.

United States, supra at 1033-1034 ("Because the text of the 1981

Amendment does not mention the effective date of the 1976

Amendment, there has been no express repeal."); Gallenstein v.

United States, supra at 290 ("An express repeal requires that

Congress overtly state with specificity that the subsequent

statute repeals a portion of the former statute."). We therefore

reject respondent's express repeal argument.

Implied Repeal

Respondent next argues that there has been an implied repeal

of the effective date of section 2040(b)(1). According to

respondent, when Congress amended subsection (b)(2) it also

directly changed subsection (b)(1). Subsection (b)(1) no longer

applied as before because it now applied to a "qualified joint

interest", as defined in the amended subsection (b)(2).
 -17-

Accordingly, the argument goes, the entire section 2040(b) was

changed by the 1981 amendment.

"It is, of course, a cardinal principle of statutory

construction that repeals by implication are not favored."

United States v. United Continental Tuna Corp., 425 U.S. 164, 168

(1976). Nonetheless, an implied repeal may be found in certain

limited circumstances:

(1) Where provisions in the two acts are in
irreconcilable conflict, the later act to the extent of
the conflict constitutes an implied repeal of the
earlier one; and (2) if the later act covers the whole
subject of the earlier one and is clearly intended as a
substitute, it will operate similarly as a repeal of
the earlier act. But, in either case, the intention of
the legislature to repeal must be clear and manifest.
* * * [Radzanower v. Touche Ross & Co., 426 U.S. 148,
154 (1976) (quoting Posadas v. National City Bank, 296
U.S. 497, 503 (1936)).]

1. No Irreconcilable Conflict

Respondent argues that the statutory provisions in issue

here are irreconcilably in conflict because under the 1981

amendment the point in time that a joint interest was created is

irrelevant, whereas the 1976 amendment applied only to "qualified

joint interests" created after December 31, 1976. Respondent

asserts that under the 1981 amendment, Congress "created a

single, simple rule of universal application and consistent

results".

Statutory provisions, however, are not irreconcilably in

conflict unless there is a positive repugnancy between them or
 -18-

they cannot mutually coexist. Id. at 155. The statutory

provisions here are not so irreconcilable. "[Section] 2040(b)(1)

applies to a qualified joint interest created after 1976, and

* * * [section] 2040(b)(2) redefines a qualified joint interest

for estates of decedents dying after 1981." Gallenstein v.

United States, 975 F.2d at 291; see also Patten v. United States,

supra at 1035 ("[Section 2040(b)(1)] could easily be read to

apply to a qualified joint interest created after December 31,

1976. For decedents dying before January 1, 1982, the old

definition of qualified joint interest applies, while for

decedents dying after December 31, 1981, the current definition

applies.").

2. Later Act Does Not Cover Whole Subject

Moreover, it cannot be said that "the later act covers the

whole subject of the earlier one and is clearly intended as a

substitute". It is clear that this was not a comprehensive

revision of the estate tax treatment of joint interests, designed

to totally displace all prior enactments. Rather, the 1981

amendment merely changed the definition of "qualified joint

interests" contained in section 2040(b)(2) without amending the

operational rule of section 2040(b)(1). The 1981 amendment

cannot stand by itself, as it merely redefines "qualified joint

interests" and is incomplete without the operative inclusion

rules provided in section 2040(a) and (b)(1). Respondent would

have us repeal only the effective date of subsection (b)(1) while
 -19-

leaving its actual substance intact. We are not at liberty,

however, to rewrite the Internal Revenue Code in that fashion.

3. No Clear and Manifest Intent To Repeal

a. Legislative History

Respondent further argues that the legislative history of

the 1981 amendment demonstrates that Congress intended to repeal

the effective date of section 2040(b)(1). Respondent looks to

the following language for support:

In view of the unlimited marital deduction adopted
by the committee bill, the taxation of jointly held
property between spouses is only relevant for
determining the basis of property to the survivor
(under sec. 1014) and the qualification for certain
provisions * * * Accordingly, the committee believes
it appropriate to adopt an easily administered rule
under which each spouse would be considered to own one-
half of jointly held property, regardless of which
spouse furnished the original consideration. [H. Rept.
97-201, at 160 (1981), 1981-2 C.B. 352, 378; see also
S. Rept. 97-144, at 126-127 (1981), 1981-2 C.B. 412,
461.]

Respondent attempts to use this language to demonstrate that

Congress intended for the 1981 amendment to repeal the effective

date of section 2040(b)(1).

This argument must necessarily fail because it does not

demonstrate an irreconcilable conflict or that the later act

covers the whole subject of the earlier one. Furthermore, we

find nothing in this language indicating that Congress meant to

alter or eliminate the effective date of section 2040(b)(1). See

Patten v. United States, supra at 1036 n.5 (noting that the
 -20-

legislative history provides little guidance).12 Accordingly,

respondent's appeal to legislative history is unavailing.

b. Potential for Abuse

Respondent also speculates about the potential for abuse in

the situation where the surviving spouse furnished the entire

consideration for the jointly held property. Respondent posits

that the estate of the deceased joint tenant has an "election" to

purposely fail to carry its burden of proving that the survivor

furnished any of the consideration for the joint interest. This

would result in 100 percent of the property being included in the

decedent's gross estate under section 2040(a), and, according to

respondent, a corresponding step-up in basis for 100 percent of

the property for the survivor, with no concurrent increase in

estate tax (because of the unlimited marital deduction).

Respondent argues that Congress could not have intended this

result, and, therefore, the 1981 amendment impliedly repealed the

effective date of section 2040(b)(1).

Again, respondent's argument fails to establish either an

irreconcilable conflict or that the later act covers the whole

subject of the earlier one. Moreover, respondent simply

misapprehends the operation of the burden of proof in this

12
Even if it did support respondent's argument, we would
hesitate to resort to legislative history to discern Congress'
intent, as we find no ambiguity in the statute as written. See
Barnhill v. Johnson, 503 U.S. 393, 401 (1992) (appeals to
legislative history are well taken only to resolve statutory
ambiguity).
 -21-

situation. For estate tax purposes, section 2040(a) does raise a

rebuttable presumption that the decedent furnished the entire

consideration for the jointly held property. For income tax

purposes, however, section 1014(b)(9) allows a step-up in basis

only for property "required to be included" in the decedent's

gross estate. Thus, in the income tax setting, which we have

here, the burden of proof is on the taxpayer, who must prove that

the decedent furnished the consideration for the jointly held

property in order to receive a step-up in basis. Madden v.

Commissioner, 52 T.C. 845 (1969), affd. 440 F.2d 784 (7th Cir.

1971) (taxpayer cannot elect whether or not to include jointly

owned property in an estate by simply failing to meet the burden

of proof in order to receive a step-up in basis for income tax

purposes).

c. Express Repeal of Subsections (c), (d), and (e)

Finally, respondent fails to address the most important

indication of congressional intent concerning the implied repeal

issue. In addition to modifying the definition of "qualified

joint interests" in section 2040(b)(2), the 1981 amendment

expressly repealed subsections (c), (d), and (e), which had been

adopted in 1978. ERTA sec. 403(c)(3), 95 Stat. 302.

Consequently, we are particularly loath to find an implied repeal

of the effective date of subsection (b)(1) given the existence of
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an express repeal in the same legislation. See Gallenstein v.

United States, 975 F.2d at 291 ("When Congress wanted to repeal a

particular section of the estate tax code, it did so

expressly."); see also West Va. Univ. Hosps., Inc. v. Casey, 499

U.S. 83, 98 (1991) ("the purpose of a statute includes not only

what it sets out to change, but also what it resolves to leave

alone.").

Conclusion

For the foregoing reasons, we hold that the "new" definition

of "qualified joint interests" in section 2040(b)(2) did not

expressly or impliedly repeal the effective date of section

2040(b)(1). Thus, section 2040(b)(1) does not apply to spousal

joint interests created before January 1, 1977. Accordingly,

respondent's motion for partial summary judgment will also be

denied.

To reflect the foregoing,

Appropriate orders

will be issued.