dissenting: That portion of the majority opinion allowing the petitioners to deduct that part of the liability of their father’s estate, and in the case of Ralph Green, of his wife’s estate, which represents interest accrued on the estate tax deficiencies of the said estates from and after the dates the assets thereof were distributed to them as beneficiaries is in my opinion contrary to the law and the facts, and for that reason I note my dissent. The petitioners were the residuary legatees of the estate of their father and as such legatees had received distribution of the residuary estate equally between them. Ralph Green was a beneficiary of his wife’s estate and as such beneficiary had received one-fourth of the assets of her estate. Accordingly the petitioners were transferees of the respective estates, and, in making payment of the estate tax deficiencies and interest thereon, they were responding to their liability in equity for the estate tax and interest of the said estates. Sec. 900 (a) (1), Internal Revenue Code. The property so received from the said estates was received without cost or charge, and there is no claim or suggestion that it was not sufficient in each instance to cover the amount of the tax and the interest thereafter paid. It came to them charged not only with liability for the deficiencies in tax, but for interest collectible “as a part of the tax,” at the rate of 6 percent per annum from the due date of the tax to the date of assessment of the deficiency. Sec. 891, Internal Revenue Code. I have been able to find no provision of statute and know of no rule of law whereunder or whereby an estate may stop the running of interest against it and on its tax by distribution of its assets, and there is no basis here for any claim that interest other than that imposed by section 891, supra, was charged or paid. There was no charge of interest qua interest against the petitioners, and to the extent of the tax and interest paid they were merely accounting to the Federal Government, creditor of the two estates, for property received under mistake of fact as their own. Through the property received the petitioners had already been secured or indemnified for the full liability they were required to pay and were actually out of pocket nothing, the net amount of their bequests merely having been fixed by the said payments. They have made no payment of interest qua interest, and their claim for the deduction of interest should in my opinion be denied. Helen B. Sulzberger, 33 B. T. A. 1093, and Inez H. Brown, 1 T. C. 225. See and compare William H. Simon, 36 B. T. A. 184; Charles R. Holden, 27 B. T. A. 530; and Jones v. Hassett, 45 Fed. Supp. 195. For a more extended discussion of my views concerning the equity liability of transferees and the nature or character of payments made thereunder, and for comment on the Congressional Committee reports cited and relied on in the majority opinion, reference is made to my dissent in Koppers Co., 3 T. C. 62.
In stating that the rule announced in the instant case is consonant with that enunciated in Harvey M. Toy, 34 B. T. A. 877, the majority has ignored the distinction specifically drawn in the Toy case between the case there decided and a case such as we have here. The liability asserted and paid and in respect of which deduction was claimed in the Toy case was directly imposed by statute, section 3467 of the Revised Statutes, and bottomed solely on the wrongful act of the party charged, while here the liability is a liability to respond in trust as a transferee or distributee of property, not for a liability of the transferee, but for a liability of the transferor. In my own mind there is grave doubt as to the soundness of the conclusion reached in the Toy case and that it may properly be said that any part of an amount paid under section 3467, supra, constituted the payment of interest. Certainly a very persuasive argument can be made that the liability paid was in the nature of a penalty for the wrongful act of a fiduciary in making distribution of a trust estate before satisfying the liability of the estate to the Government for tax and interest, and that such tax and interest is merely the measure of the penalty imposed and not as to the fiduciary tax and interest. Regardless, however, of the soundness of the Toy case, it does not decide or stand for the proposition decided in the instant case.
Similarly, Scripps v. Commissioner, 96 Fed. (2d) 492, and Penrose v. United States, 18 Fed. Supp. 413, do not stand for the proposition here decided, but, if in point at all, are in part, at least, directly contrary. Under the rule enunciated in the Penrose case, the petitioners are entitled to deduct as their interest the entire amount of interest charged and paid on the estate tax deficiencies and are not limited to interest accrued before the distribution of the assets of the estates, as the majority here holds. The Scripps case, if in point at all, is also authority for the deduction of the interest in full. It is to be noted also that the estate tax and interest were paid by an inter vivos trust, created prior to the death of the decedent, and that the liability was statutory and not a liability in equity.
In the case of Ralph Green, it would seem that only a part of the interest deduction claimed should be allowed, even under the theory of the majority opinion. The facts show that as beneficiary of his wife’s estate he was entitled to receive and did actually so receive only one-fourth of the assets. There is no showing that he was ever charged with any amount as transferee, the recitation in the report being that a deficiency was determined against the estate of Nelle M. Green and “the matter was finally settled by Ralph Green furnishing the funds” to pay the deficiency and interest. The majority opinion allows him to deduct as his interest the full amount of the interest which accrued on the estate tax from and after the date he, as beneficiary of the estate, received one-fourth of its assets. His ultimate liability to pay the amount of such interest was only one-fourth thereof. Such being the facts, it would seem to me that as to the other three-fourths it must necessarily be concluded that the payment was a voluntary payment of the interest of another, for which no deduction is allowable. Colston v. Burnet, 59 Fed. (2d) 867, and William H. Simon, supra.
Kern, J., agrees with this dissent.