dissenting: I dissent from the majority’s conclusion that decedent’s husband’s Texas homestead rights reduce the value of decedent’s gross estate, and I strongly disagree with the holding by the majority, supra at 128, that Estate of Hinds v. Commissioner, 11 T.C. 314 (1948), affd. on other grounds 180 F.2d 930 (5th Cir. 1950), "is expressly overruled.” By reversing our course in this area after more than 30 years, we have granted carte blanche to the States to do what individuals plainly cannot — shelter substantial amounts of marital property from Federal taxation in the estate of either spouse.
I believe section 2034,1.R.C. 1954, mandates inclusion of the entire property in decedent’s estate, that is, decedent’s interest in that property under section 2033 plus her husband’s Texas homestead interest under section 2034. The statement to the contrary in the majority opinion, supra at 126, is both unwarranted dicta and erroneous. If husband’s Texas homestead rights are not included in the decedent-wife’s estate under section 2034, as would be common law dower or curtesy, a significant portion (approximately $82,000 out of $174,000) of this marital property will end up not being taxed in the estate of either spouse because the husband’s rights evaporate upon his death. This result is clearly inconsistent with both the overall structure and the purpose of the estate tax (compare, e.g., secs. 2040 and 2056), and leads me to conclude section 2034 must be read as applying to homestead rights such as those at issue herein.
The majority opinion holds that Texas homestead rights are not an interest created "in lieu of” dower or curtesy, and cites the Interpretative Commentary following Tex. Const, art. 16, sec. 50, for support. Texas law will of course determine the extent of the interest owned by each spouse. See Commissioner v. Estate of Bosch, 387 U.S. 456 (1967). But Texas law is irrelevant insofar as it relates to the proper interpretation of section 2034. Section 2034 is a Federal statute and must be construed in light of the Federal public policies underlying its statutory language. Lyeth v. Hoey, 305 U.S. 188, 193 (1938).
The idea of section 2034 is to include in the gross estate the entire interest of a decedent in property, even though such interest is subject to marital rights under State law which give some type of life estate in the property to the decedent’s spouse. See generally Tait v. Safe Deposit & Trust Co., 70 F.2d 79 (4th Cir. 1934). The language of section 2034 — "any interest * * * of the surviving spouse, existing at the time of the decedent’s death as dower or curtesy, or by virtue of a statute creating an estate in lieu of dower or curtesy” — describes an interest or estate given the surviving spouse under local law that is defined as or serves the same purposes as common law dower or curtesy. Black’s Law Dictionary 580 (4th ed. 1968) defines dower as "The provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.” Accord, 25 Am. Jur. 2d 88, Dower & Curtesy, secs. 9 and 10 (1966). Homestead rights under Texas law plainly serve the above purpose. See Orr v. Orr, 226 S.W.2d 172 (Tex. Civ. App. 1949). Accordingly, I would hold that Texas homestead rights create an interest "in lieu of dower or curtesy” as defined for purposes of the Federal estate tax. That the Texas provisions may not have been intended to codify or to replace the English common law rights of dower or curtesy is not controlling, especially in light of section 20.2034-1, Estate Tax Regs., which includes within the meaning of section 2034 "any interest created by statute in lieu thereof (although such other interest may differ in character from dower or curtesy ).” (Emphasis added.) See also sec. 20.2031-l(a)(l), Estate Tax Regs.; H. Rept. 767, 65th Cong., 2d Sess. (1918), 1939-1 C.B. (Part 2) 86,101. Cf. United States v. Hiles, 318 F.2d 56 (5th Cir. 1963) (routine inclusion of property subject to Alabama homestead rights in the gross estate; homestead treated like dower for purposes of the marital deduction except insofar as a difference in vesting leads to a different result under the terminable interest rule, sec. 2056(b)).
The foregoing analysis leads me to conclude that Estate of Hinds v. Commissioner, supra, reached the correct result and should not be overruled. While I agree with the majority that section 2033 does not in this case require inclusion of husband’s Texas homestead rights in decedent-wife’s estate, I do not find the analysis in Estate of Hinds to be sufficiently detailed to warrant overruling that case on the ground it reached the right result for the wrong reason.1 Estate of Hinds has been relied upon as controlling authority on this issue for more than 30 years by the Government, taxpayers, and the tax bar in general. See R. Stephens, G. Maxfield & S. Lind, Federal Estate and Gift Taxation, par. 4.05[3] n. 17 (1978). Nothing in the legislative history of the enactment of the 1954 Code even remotely suggests Congress considered this area unsettled at that time. See H. Rept. 1337, 83d Cong., 2d Sess. at A313 (1954).
As indicated above, I agree with much of the majority’s analysis under section 2033. However, I cannot agree with its general approach. Section 2033 is not a valuation section. Value is determined under section 2031. See sec. 20.2031-1 to - 10, Estate Tax Regs. Valuation issues are primarily factual. See Estate of Smith v. Commissioner, 57 T.C. 650 (1972), affd. 510 F.2d 479 (2d Cir. 1975). See also Buffalo Tool & Die Mfg. Co. v. Commissioner, 74 T.C. 441 (1980); McGuire v. Commissioner, 44 T.C. 801 (1965). Moreover, because the parties stipulated the value of the property in 'this case if homestead rights are taken into account, the valuation issue simply is not presented.
Section 2033 includes in the gross estate the interest owned by the decedent under State law at the time of his or her. death. The legal issue that should have been addressed by the majority is whether any interest in the property at issue was not owned by the decedent at the time of her death. If the decedent held less than a fee interest (in all of the small plot, and an undivided half interest in the larger tract) at the time of her death, then, and only then, should we determine under section 2031 the value of the lesser interest she held.2 By injecting valuation issues into our analysis- of .sections 2033 and 2034, we risk undermining the integrity of sections 2034 through 2045 by subjecting those inclusion sections to collateral attack under the aegis of section 2031. The proper approach is to determine what is includable in the gross estate under sections 2033 through 2045, and then to value that property, or interest under section 2031.
That much said, I think the remainder of the majority’s analysis under section 2033 is essentially correct. The surviving spouse held his Texas homestead rights — which amounted to a kind of protected life estate — before, at, and after his spouse’s death. Without his affirmative consent, his spouse could neither have transferred during her life nor passed on at her death his interest in the property.3 Simply stated, his rights constituted an interest in the property not owned by the decedent at the time of her death, and which, accordingly, is not includable in her estate under section 2033.
This is admittedly a gap or "loophole” in section 2033. But it is a "loophole” which is "plugged” by section 2034. The whole purpose of sections 2034 through 2045 is to close just such gaps in the statute, and the specific purpose of section 2034 is to ensure that real property held by one spouse to which marital rights attach will nevertheléss be included in that spouse’s estate. H. Kept. 767, supra, 1939-1 C.B. at 101.
Finally, it is unclear from the majority opinion, supra at 125-126, to what extent its holding is based upon a concession by respondent ■ that homestead rights are not an interest created in lieu of dower or curtesy under section 2034.4 If the majority indeed has accepted such a concession of law, then its holding as to section 2034 is pure dicta. Moreover, such a basis would appear to leave the door open for reaching a different result in future cases.
However, by "expressly” overruling Estate of Hinds, the majority apparently is holding as a matter of law that homestead rights are not includable in the gross estate under section 2034, unless those rights were created by the State legislature to replace common law dower or curtesy. This result skews the law in a way that has little or nothing to do with the policies underlying the Federal estate tax and cannot be squared with the obvious purpose of a Federal statute that has been reenacted in substantially its present form since 1918.
Tannenwald and Simpson, JJ., agree with this dissenting opinion.As pointed out by the majority, Estate of Hinds v. Commissioner, 11 T.C. 314 (1948), affd. on other grounds 180 F.2d 930 (5th Cir. 1950), relied upon a regulation now found at sec. 20.2033-l(b), Estate Tax Regs., and originally issued under the statutory predecessor of current sec. 2033. It is true that differences in State law may dictate inclusion of property subject to "homestead rights” in the gross estate under sec. 2034 in some cases and sec. 2033 in others. But I know of no case striking down otherwise valid regulations solely on the ground they have been misplaced. Cf. Fulman v. United States, 434 U.S. 528 (1978); L. C. Bohart Plumbing & Heating Co. v. Commissioner, 64 T.C. 602, 608 (1975).
I am somewhat' confused by the majority’s statement at pp. 123-124, "Petitioner concedes that the homestead property is includable in decedent’s estate but contends that the value of the interest that decedent possessed at death must be reduced due to these homestead rights.” I can find no such concession in the briefs. Read literally, that concession, had it in fact been made, would have ended the case.
It is important to recognize that similar restrictions and rights attach prior to death to property subject to common law dower or curtesy. In Sykes v. Chadwick, 85 U.S. (18 Wall.) 141 (1873), a wife sold, for a note, her dower rights in real property that her husband wished to sell. When the purchaser of the property subsequently refused to pay the note for lack of consideration, the Supreme Court enforced the sale and the note, holding, "her right of dower is a valuable interest, which she cannot be compelled to resign, and which the law very carefully protects from the control of her husband.” 85 U.S. at 145. Indeed, it is universally held that, although dower is an inchoate right with possession contingent upon survivorship, dower is nevertheless a valuable present interest of the wife that cannot be defeated by the husband or his creditors either during his life or thereafter. In re Cropsey Ave. in City of New York, 268 N.Y. 183, 186, 197 N.E. 189, 190 (1935). See Porter v. Lazear, 109 U.S. 84 (1883). See generally 28 C.J.S. 108, Dower, secs. 42, 45, 47 (1941). Such parallels further convince me that Texas homestead rights should be treated just like dower or curtesy for purposes of the Federal estate tax.