dissenting: I am unable to concur in the opinion reached by a majority of the Court. It recognizes that decedent had no reason to apprehend death at the time o! the transfer, but sustains the Commissioner’s determination on the ground decedent’s “controlling and dominant purpose was to escape estate taxes.” The facts found indicate that decedent was conscious of the tax consequences of his act, and, being conscious, chose an advantageous form of tenure in making the transfer. In Gregory v. Helvering, 293 U. S. 465, the Supreme Court recognized: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits * * California law permits the change from community to tenancy in common. See Jurs v. Commissioner, 147 Fed. (2d) 805, in which the Circuit Court of Appeals for the Ninth Circuit, so holding, cites many cases to this effect. Such a change could be made by any taxpayer, whether or not apprehensive of death and whether or not tax-conscious. The majority concludes, however, that decedent’s awareness of an estate tax saving is alone sufficient to support a finding that the transfer was made in contemplation of death. In all the cases cited the finding that death was contemplated is supported by substantial other evidence; it is not predicated merely on the decedent’s wish to reduce estate taxes upon eventual death. And in Commonwealth Trust Co. of Pittsburgh v. Driscoll, 50 Fed. Supp. 947, the only cited case involving, as here, a mere change in the form of tenancy between spouses, the transferor husband alone originally owned the land involved, then conveyed it to himself and wife by the entirety, and, after reaching 80 years of age, conveyed it to her alone. The decedent here was not at an advanced age, but only 56, and not in ill health when the transfer was made. He may have been tax-conscious, but he was not contemplating death, and in my opinion section 811 (c) was not designed to nullify tax-wise a conveyance made under such circumstances.
I can not agree with the majority opinion that it is “almost absurd” to regard escape from the gift tax as decedent’s object. Decedent’s lawyer had advised him that after January 1, 1943, a transfer to his wife would be taxable, and I think the facts indicate that it was in contemplation of a change in the gift tax law as applied to community property, rather than in contemplation of death, that decedent took the action when he did.
The majority rejects petitioner’s alternative contention that the transfer was for a full and adequate consideration in money or money’s worth. Obviously, decedent received in value the exact equivalent of what he surrendered, but the majority, viewing the change in tenure as merely a relinquishment of marital rights in property, which by section 812 (b) is not to be deemed consideration in money or money’s worth, holds that decedent received no recognizable consideration for what he transferred; further, that the consideration received did not bring into the estate the equivalent of what was transferred. This reasoning is at best doubtful, for after the change in tenure petitioner had exactly the equivalent of what he had before, and the wife likewise had no more and no less, for her “interest in the community was. a present vested interest,” Commissioner v. Harmon, 323 U. S. 44, and the husband could not, under California law, alienate it without her consent. §161 (a), §172, 172 (a), Civil Code of California. But under my view that the transfer was not made in contemplation of death, questions arising out of the alternative contention' become academic.
Hill, J., agrees with this dissent.