Mercantile-Commerce Nat'l Bank v. Commissioner

MERCANTILE-COMMERCE NATIONAL BANK IN ST. LOUIS AND MARIE H. NICKELL, EXECUTORS AND TRUSTEES, ESTATE OF DOUGLAS J. LANDERS, DECEASED, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 35443.

United States Board of Tax Appeals

21 B.T.A. 1347; 1931 BTA LEXIS 2206;

January 23, 1931, Promulgated

*2206 1. ESTATE TAX - GROSS ESTATE. - The value of Missouri real estate owned by decedent and his wife as tenants by the entirety must be included in the gross estate, Mary S. Garrison et al.,21 B.T.A. 904">21 B.T.A. 904, even though the estates were created prior to September 8, 1916, Commerce Union Trust Co. et al.,21 B.T.A. 174">21 B.T.A. 174.

2. Id. - The widow did not claim or receive the widow's child's share of decedent's personalty to which she may have been entitled under section 319, R.S. Mo., 1919, but instead accepted the terms of the will. Held, that respondent did not err in including in the gross estate the value of all of decedent's personal property.

3. DEDUCTIONS. - Total executors' commissions paid allowed as a deduction from the gross estate.

David Barron, Esq., and Irvin V. Barth, Esq., for the petitioners.

Harold Allen, Esq., for the respondent.

TRUSSELL

*1347 In this proceeding the petitioners contend that the respondent, in his determination of a deficiency in the amount of $10,687 in estate tax, erred in including in the gross estate of the decedent (1) the value of the interest of decedent in Missouri*2207 real property at the time of his death, and (2) the value of the widow's child's share of the personal property belonging to decedent at the time of his death, as provided for by the laws of Missouri, and (3) in disallowing as a deduction from the gross estate the total amount of executors' commissions paid.

FINDINGS OF FACT.

The petitioners are the executors of the estate of Douglas J. Landers, deceased.

Douglas J. Landers, a resident of Springfield, Mo., died testate on December 15, 1925, and was survived by his widow, Marie H. Landers, and two legally adopted children. At the time of his death decedent and his wife owned, as tenants by the entireties, two parcels of real property appraised and valued at $38,000. The said two parcels of real estate situated in Greene County, Missouri, were acquired by them on May 2, 1914, and September 7, 1916, respectively.

The decedent's last will and testament provided for several specific bequests of personal property and then provided that all of the *1348 residue of his estate be held in trust, the income to be paid to his widow during her life and after her death to the children until they attain a certain age, at which*2208 time they or their heirs are to receive the corpus of the trust. No real estate or personal property was devised or bequeathed to the widow and she did not renounce the will, but took under the same.

The executors' commissions duly allowed by the court and actually paid amounted to the sum of $24,501.66.

In determining the deficiency in controversy the respondent has computed the value of the gross estate to be $548,911.65 and he has included therein the value of the said real estate in the sum of $38,000, and also the value of all of the personal property which the decedent owned at the date of his death. The respondent has allowed deductions totaling $77,975.82 which includes $13,192 paid as executors' commissions, but no allowance has been made for the additional amount of $11,309.66 duly allowed by the court and paid as executors' commissions.

OPINION.

TRUSSELL: The petitioners contend that the value of the Missouri real estate which the decedent and his wife owned as tenants by the entireties, may not be included as a part of decedent's gross estate for Federal estate tax purposes for two reasons, namely, (1) that under the laws of Missouri, real estate is not subject*2209 to the payment of administration expenses, and thus does not meet the requirements set forth in section 302(a) of the Revenue Act of 1924; and (2) that the estates by the entireties were created prior to September 8, 1916, and thus should not be included, pursuant to Treasury Decision 4248. The petitioners have not claimed, and no evidence has been submitted to show, that any part of the real estate constituting the tenancies by the entireties originally belonged to the surviving spouse and never to the decedent. The first of the aforesaid contentions was considered and decided adversely to petitioners by this Board in the case of Mary S. Garrison et al.,21 B.T.A. 904">21 B.T.A. 904, and upon authority of that decision we must hold that the full value of the real estate owned by the decedent and his wife as tenants by the entirety must be included in gross estate for estate tax purposes, pursuant to the express provisions of section 302(e) of the Revenue Act of 1924. With respect to petitioners' second contention, made in the alternative, we must hold that value of the said real property must be included in the gross estate even though the estates by the entireties were created*2210 prior to September 8, 1916, upon authority of Commerce Union Trust Co. et al.,21 B.T.A. 174">21 B.T.A. 174.

*1349 The second issue relates to a question of law as to whether there should be included in the gross estate the value of the widow's child's share of the decedent's personal property to which she may have been entitled under section 319 R.S. Mo., 1919. In the case of St. Louis Union Trust Co. et al., Executors,21 B.T.A. 1201">21 B.T.A. 1201, the Board held that the widow's child's share of a decedent's personal property, under the Missouri statutes, was properly included in the gross estate of the decedent under provisions of the Revenue Act of 1921, which are not unconstitutional. In the cases of United Statesv. Waite and Crooks v. Hibbard, 33 Fed.(2d) 567, 280 U.S. 608">280 U.S. 608, wherein the decedent died intestate in one case and the widow renounced the will in the other case and both widows elected to take a child's share of the realty in lieu of dower under section 324 R.S. Mo., 1919, and also a child's share of the personalty under section 319 R.S. Mo., 1919, the court held that the value of the realty was expressly included in the*2211 gross estate by section 402(b) of the Revenue Act of 1918, and, further, that the widow took a child's share of the personalty under section 319 not as a doweress, but as a distributee; that her rights were measured by the rights of a child; and that the personal estates of the two decedents came within the requirements of section 402(a) of the Revenue Act of 1918. Those decisions would be controlling in the instant case and the respondent's determination sustained even if the widow had claimed and received a child's share of the decedent's personalty, but instead she accepted the terms of the will, which provided that practically all of decedent's property be held in trust and that the income be paid to the widow during her lifetime. Accordingly, we are of the opinion that there is no basis in fact for petitioners' contention as to this issue and that respondent did not err in including in the gross estate the value of all of the personal property owned by decedent at the date of his death.

The third issue involves the allowance as a deduction from the gross estate of the executors' commissions duly allowed by the court and paid in the amount of $24,501.66. Of that amount respondent*2212 has allowed a deduction of $13,192 and petitioners are now entitled to a further and additional deduction of the sum of $11,309.66 under section 303 of the Revenue Act of 1924.

Judgment will be entered pursuant to Rule 50.