1929 BTA LEXIS 2459">*2459 1. The evidence does not overcome the presumption that certain gifts made within two years of decedent's death were made in contemplation of death.
2. The evidence offered by the petitioners in support of certain values contended for is also held insufficient to overcome the Commissioner's finding of value.
16 B.T.A. 1058">*1059 The Commissioner determined a deficiency in estate tax of $14,246.90.
The errors urged by the petitioners are (a) in holding that certain gifts made by the decedent within two years prior to his death were made in contemplation of death, and, therefore, to be included as a part of the gross estate, and (b) the action of the Commissioner in increasing the values, as returned by the estate, of certain stocks, bonds, notes, etc.
FINDINGS OF FACT.
The petitioners herein are the duly appointed executors and executrix, respectively, of the estate of Fernando P. Neal, formerly a resident of Kansas City, Mo., who died February 20, 1924, at the age of 68.
Neal was actively engaged in the banking business until his retirement therefrom. 1929 BTA LEXIS 2459">*2460 At the time of his death he was engaged in the investment business.
Neal was five feet six or seven inches in height, had a florid complexion, was very active, usually vigorous, and prior to his illness, hereinafter discussed, had a very robust, healthy appearance. On November 19, 1923, Neal, while at the home of his sister, suffered an attack of acute dilation of the heart, thought at that time by the physician in attendance, to have resulted from severe exertion while operating his automobile. Upon his initial call the physician found that Neal was coughing up frothy, bloody sputum and was suffering severely from difficulty in breathing. Digitalis and morphine were prescribed and Neal recovered from the attack about two hours thereafter. He was, however, kept at his sister's home under observation of his physician until November 24, although he required very little care. On that date, to wit November 24, Neal went to his physician's office and was given a general examination. Neal was permitted to go to his office but was instructed to abstain from golfing, overeating, getting unduly excited or aroused, and to abstain from any severe physical exertion. His physician felt1929 BTA LEXIS 2459">*2461 at that time that if Neal would obey his instructions (he being rather obstinate in such matters), his condition was not such as to indicate immediate death and, furthermore, that if the strain on the heart could be kept down, there was no reason why he would not live for an indefinite period. Notwithstanding Neal was advised to keep in touch with his physician, he did not do so and was not seen by him until at a much later date, when he walked a considerable distance from the bank to his physician's office.
On December 24, 1923, Neal visited his physician, when it was discovered that he was suffering from heart block and that his condition was very grave. There was also evidence of dropsy and fluid 16 B.T.A. 1058">*1060 in his abdomen. His condition indicated that the muscles of his heart were showing strain.
On December 27 it was discovered that Neal was more seriously ill than before. His physician was called to his home, where Neal was found suffering with a severe convulsion. At this time his physician felt that there was no possibility of recovery. On that date Neal was admitted to Research Hospital, where his illness was recorded as arteriosclerosis, heart block and nephritis1929 BTA LEXIS 2459">*2462 chronic. The records of the hospital as compiled by the attending nurse disclosed that on December 31, 1923, Neal had a very poor night, was nervous and restless, thought he was dying, complained of being very not and very cold at the same time, and that he slept not more than one and one-half hours during the night. That record shows further that during the period January 15, 1924, to February 6, 1924, Neal had improved and that at first he was permitted to sit in a wheel chair for one hour daily, and later to walk and go out riding. He was very unhappy at the hospital and expressed the desire to go home. Feeling that he would be much happier at home and that he could rest there as well as at the hospital, he was, on February 6, 1924, with the permission, but not the advice, of his physician, discharged from the hospital, and returned to his home, where he died on February 20, 1924. Although his condition was indicated to his family as soon as diagnosed, the nature of his disease was never imparted to him by him physician.
Neal made a practice of always making gifts to his children at Christmas which at times were more substantial than at others. At or about the time of the1929 BTA LEXIS 2459">*2463 World War, or shortly prior thereto, he gave each of them $10,000, and about a year before he died, $5,000, each. He loaned his children money to assist them in business or for purposes of investment in securities. Neal discussed at various times, as far back as 1911 or 1912, the matter of giving his children property, and in those discussions he mentioned the fact that he thought it better to distribute his estate, and not wait until they might receive it in a lump sum, in order that they might learn to use it intelligently and have the benefit of his advice.
In July, of 1923, at the instigation of his son, Marshall, Neal purchased 800 shares of Phillips Petroleum Co. stock, at $26 per share, or $20,800, which amount was charged to said son in Neal's general ledger on July 17, 1923, it being the understanding that said son was to repay him that amount of money, for which he gave his note. In November, 1923, the stock had risen in value and his son told him that he wished to sell it, but his father protested because he thought it would go higher. He told his father that he was in debt far enough and that he had better take a profit and his father admonished him not to worry, 1929 BTA LEXIS 2459">*2464 that he was going to give him 16 B.T.A. 1058">*1061 that block of stock, and he thereupon told his secretary to so transfer it on the books and to return his son's note to him. There having been a $400 dividend credited to that account on October 1, 1923, an additional credit of $20,400 was made on November 19, 1923, which balanced the account between Neal and his son.
Neal had talked about making a substantial Christmas gift to his children for several years, and on December 15, 1923, he wrote a letter to his son, Clarence, at Jacksonville, Fla., and a similar one to his son, Marshall, stating:
It has been my wish and desire to make a substantial 1923 Christmas present to you, Mary and Marshall, and I am taking this opportunity to advise you somewhat in advance that this is my intention.
I want to transfer certain of my securities, in as nearly equal parts as possible, but there may be some delay in my effecting this transfer in time to have them ready by Christmas Day. However, I hope to be able to give you this present by January 1st or thereabouts.
I hope you will keep this present intact as much as possible, and will enjoy the income therefrom the rest of your life. I trust1929 BTA LEXIS 2459">*2465 you will see fit to, in turn, divide this gift between your children, when you get ready to provide for their welfare after you are gone.
Your loving father,
(Signed) F. P. NEAL.
In an account in Neal's ledger, entitled "F. P. Neal Capital Account," A debit entry was made under date of December 24, 1923, showing sundry stocks given to his children, Clarence A. Neal, Mary Neal Crutcher, and Marshall S. Neal, as follows:
| 80 shares Butler Manufacturing Co | $14,000.00 |
| 100 shares Chatham and Phenix | 18,732.00 |
| 100 shares K. C. Laundry Co., preferred | |
| 30 shares K. C. Laundry Co., common | 5,844.73 |
| 32 shares Kansas Trust Co | 5,000.00 |
| 200 shares Kansas Flour | 15,000.00 |
| 90 shares K. C. Life Insurance Co | 16,290.00 |
| 1,500 shares Phillips | 51,540.00 |
| Total debit of | 126,406.73 |
On or about the 2d, 3d, or 4th of January, 1924, the three children made the division, and after doing so they showed their father what they had done, and he made one or two changes and approved the division. The father then had the stock transferred to them, but actual delivery of the new certificates was not made for some 30 days thereafter, because of the necessity for going through the1929 BTA LEXIS 2459">*2466 details of transfer.
Neal also gave 100 shares of Phillips Petroleum Co. stock to his secretary, Miss Leslie M. Kelly, who had been with him approximately 15 years.
16 B.T.A. 1058">*1062 The respondent increased the gross estate as returned by the petitioners by including therein the values of the stocks given to the decedent's children and secretary as herinabove set forth.
Neal's mental condition during November and December of 1923 was keen and alert. While in the hospital he discussed business with his friends and business associates, he was in a pleasant frame of mind, and his attitude was one of hope and expectancy that he would soon recover. He began planning in the summer of 1923 to spend the coming winter in California, which trip he was still discussing and making preparations for in January of 1924.
Neal was active up to the time of his attack of December 24. He maintained an office in the Commerce Building and was there every morning at 9 o'clock and stayed until 5 or 5.30 every afternoon. While he was not tied down to steady employment as he might have been as an officer of the bank, he served on many committees that occupied considerable of his time. He advised1929 BTA LEXIS 2459">*2467 others in investment matters, aided in the consolidation of two banks, took care of his own affairs, loaned his money in various and sundry ways and made loans for others and bought and sold loans. He drew a salary of $300 a month from the Kansas City Southern Life Insurance Co. up until February, 1924, the month in which he died.
In October or November of 1923 Neal played golf with a friend and, having been caught in a hard rain, they trotted together to the top of a hill for shelter, on which occasion Neal displayed even greater physical endurance than his companion.
In 1923 the Kansas City Life Insurance Co., in which Neal was a stockholder, was planning the erection of a new building and Neal and the president of that company visited several cities between April and August of that year, inspecting buildings for ideas of construction.
The petitioners returned the value of lot 5, block 1, Sunset Hill, Kansas City, Mo., at $5,000, the amount fixed by the appraisers of the estate at the date of the decedent's death. The value of this property was increased by the respondent to $9,625, which is the sale price accepted more than a year after the death of Neal. That property1929 BTA LEXIS 2459">*2468 was appraised in 1924 for taxation by the city at $1,390 and by the county at $2,050.
The stock of the Kansas City Life Insurance Co. returned by the petitioners was valued at $200 per share as of the date of the decedent's death, which value was increased by the respondent to $500 a share. Half of the stock of this company was held by the president thereof, and the remainder was distributed among loss than 30 stockholders. Shortly after the transfer of this stock to Neal's children, to wit, in or about April 1924, his daughter offered 16 B.T.A. 1058">*1063 her stock to her brothers at $250 a share, which they considered too high and would not purchase. In October or November of 1924 Neal's son, Marshall, in order to equalize their stockholdings in this company, sold his brother 3 shares of this stock at $300 a share. On February 18, 1925, Marshall Neal purchased 15 shares of stock in that company for $600 a share and he thereafter purchased 25 shares, for which he paid $400 a share. Between the dates of the two preceding transactions there had been a 100 per cent stock dividend declared by that company. The dividend on that stock in 1923 and 1924 was $16 a year.
The petitioner1929 BTA LEXIS 2459">*2469 returned $2,500 first mortgage 6's, due 1925, of the Orient Realty Co., at $1,250 which was the value placed upon it by appraisers of the estate. The respondent increased the value as returned to the sale price on October 1, 1924. The Orient Realty Co. is the real estate company of the Blue Hills Country Club.
The estate owned a $1,000 bond of the Kansas City Outer Belt Railroad Co., which was appraised and returned for tax purposes as having no value. The respondent placed a value of $71 on this bond, based upon the amount received therefor on April 20, 1924.
The estate returned certain shares of stock of the Kansas City Terra Cotta Co. as having no value, based upon the conclusion reached by the estate's appraiser. The respondent placed a value of $500 on this stock based upon the sale price received therefor something like 14 months later by Marshall Neal, who received this stock as one of the distributees of the estate.
The estate returned "26 parts Junction Bill Trusteeship," representing decedent's ownership in abandoned mine property, as having no value. This item was written down to $1 on decedent's books in 1920. At the time of Neal's death, negotiations for1929 BTA LEXIS 2459">*2470 the sale of this property were pending, and on March 22, 1924, a contract was entered into with some mining interests resulting in the receipt by the estate of $32,260.07, which is the value placed upon the decedent's interest by the respondent.
The respondent increased the value of certain other property as returned by the estate.
OPINION.
LITTLETON: The major question presented is whether the evidence is sufficient to overcome the presumption that certain gifts made by decedent within two years of his death were made in contemplation of death, within the meaning of section 402(c) of the Revenue Act of 1921, which reads in part as follows:
* * * Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two 16 B.T.A. 1058">*1064 years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.
The question is whether the evidence negatives the presumption of fact that the gifts were made in contemplation of death. To state the question another way - since the gifts were made within two1929 BTA LEXIS 2459">*2471 years of decedent's death, does the evidence establish that they were not made in contemplation of death? C. D. Lehman, Executor,6 B.T.A. 791">6 B.T.A. 791. The answer must be determined by taking into account not only the facts and circumstances connected with the making of the gifts, but also the decedent's mental and physical condition at such time. It is also proper that the presumption of fact to the effect that such gifts were made in contemplation of death be considered in arriving at the ultimate fact with which we are concerned. Shwab v. Doyle,269 F. 321; Herbert Kahn et al.,4 B.T.A. 1289">4 B.T.A. 1289. In Shwab v. Doyle, supra, the court said:
* * * The provision in question raises a presumption of fact, not a presumption of law, and under well-settled rules a presumption of fact may be taken into account in determining the ultimate fact. The presumption is merely a rule of evidence whose enactment is within the legislative competency. Mobile, etc., R.R. Co. v. Turnipseed, 219 U.S.35, 42, 31 Sup.Ct. 136, 55 L. Ed. 78, 32 L.R.A.(N.S.) 226,1929 BTA LEXIS 2459">*2472 Ann.Cas. 1912A, 463. The very object of a presumption of fact is to supply the place of facts. Lincoln v. French,105 U.S. 614">105 U.S. 614, 105 U.S. 614">617, 26 L. Ed. 1189. Of course, a presumption can never be allowed against ascertained and established facts. But unless the statutory presumption may properly be taken into account in determining the ultimate fact, it has no office. Elements which, in the absence of evidence to the contrary, are made sufficient to conclusively establish the ultimate fact, cannot be said to have no evidentiary influence in reaching that conclusion.
Also, the Circuit Court of Appeals for the Second Circuit said, in Luscomb v. Commissioner, 30 Fed.(2d) 818:
Section 402, sub. div. (c) of the Act of 1921 (42 Stat. 227, 277, 278) provides that a transfer of a material part of property of a decedent in the nature of a final disposition or distribution thereof made by decedent within two years prior to his death, without a consideration, shall unless shown to the contrary, be deemed to have been made in contemplation of death. Due regard must be had for this presumption as well as the finding of the Board against the taxpayer.
1929 BTA LEXIS 2459">*2473 When all of the evidence is considered in connection with the presumption of fact contained in the statute, we are not satisfied that the presumption has been overcome. While it is shown that Neal had not been advised of the seriousness of his condition by one of the attending physicians who testified, this does not necessarily mean that he, himself, was not aware of the existence of physical infirmities which later resulted in his death. As early as August, 1923, he had an attack apparently similar to the one of November 19, 16 B.T.A. 1058">*1065 1923, and it is further shown that it was of sufficient importance to have been remembered and recounted when the later attacks occurred. Each recurrence of the trouble seems to have been more serious than the one proceding. The petitioners urge that mental alertness, continued interest in business activities and plans for future pleasure and general optimism are opposed to the proposition that the decedent in any way anticipated, contemplated or suspected that death was to be expected in the close or "reasonably distant" future and these facts are, of course, of importance, but we do not regard them as conclusive of the issue before us, since1929 BTA LEXIS 2459">*2474 man sometimes exudes optimism and courage when pessimism and fear exist within. In many cases this may be an unnatural condition, but it is, nevertheless, true that outward appearances are no infallible index to man's inner consciousness. As was said by the court in Rosenthal v. People,211 Ill. 306">211 Ill. 306; 71 N.E. 1121">71 N.E. 1121:
His physician did not tell him he was going to die. He did not ask the physician what was the matter with him, and the physician did not tell him. He talked about going abroad to recuperate, and said nothing about his death. There was no talk by him or his wife, or any one, on that question.
* * *
* * * While the widow and physician testified that the deceased did not expect to die, they also said that it was not the subject of conversation at all, and in view of his condition it is a fair inference that he was not so dull of comprehension as to suppose that he would get well.
When we come to examine the dates when the gifts were made or action to that end taken, the evidence supports, rather than rebuts, the presumption in question - at least it seems "passing strange" that the gift to Marshall Neal on account of the purchase1929 BTA LEXIS 2459">*2475 of Phillips Petroleum Co. stock should have been made on the day that the second, or first serious, attack occurred and that the first record we have of positive action taken with respect to the so-called Christmas gift to the three children was on the day the final and fatal attack occurred. Witnesses testified that on various occasions prior to the making of the gifts, in fact several years prior to 1923, the decedent had discussed a division of his property among his children, but nothing to that end appears to have been done until after unmistakable signs of the illness appeared. The letter of December 15, 1923, did not constitute the making of the gift, but was merely a written expression of his intention to make the gift. Expressions apparently to the same effect, though perhaps oral, had been made prior to this time, since one of the sons testified that they (the children) had asked the decedent's secretary many times about his action in regard to these gifts and that he (the decedent) had talked of it for at least five years. The fact remains that definite action was taken only after positive danger signs appeared. It is hardly reasonable to think 16 B.T.A. 1058">*1066 that a man1929 BTA LEXIS 2459">*2476 of Neal's intelligence would not sense something more than ordinary physical disability when he was advised in August, 1923, to use radical measures as to his health and in November, 1923, to do no walking, to abstain from golfing or any severe physical exertion, not to get unduly excited or aroused and to be careful of his diet. His outward apparent disregard of these instructions is not determinative of his lack of realization of the seriousness of his condition.
It is further significant that while the decedent indicated in his letter of December 15, 1923, that there might be some delay in transferring the securities and that he desired to make the gift as a Christmas present, he apparently did not undertake to have the securities transferred prior to December 24, 1923. At least the record is silent as to anything which may have transpired from December 15, 1923, to December 24, 1923, when an entry was made on decedent's books, by his secretary, of the securities included in the gift, with the explanation, "Sundry stocks as follows, given to Children * * *." This, of course, was the day on which the decedent went to the office of his physician, who gave the following description1929 BTA LEXIS 2459">*2477 of his condition at that time:
His condition at that time was very grave. He had signs at that time of heart failure. He had evidence of some dropsy and some fluid in his abdomen; and his condition, all in all, was indicative that the heart muscles were showing evidence of strain.
The next step in the completion of the gift seems to have occurred a day or two after January 1, 1924, when the son who lived in California arrived. At this time the children indicated a tentative division of the stock among themselves and submitted it to the decedent, who, after one or two changes, approved it. Thereafter the stock was transferred, but since the transfer agent in some instances was located in New York, some 30 days were required to complete the entire transaction. The decedent was not only a man of large affairs, but also actively engaged in the banking and investment business, which certainly made him familiar with the requisite time necessary for the transfer of the securities. The fact, therefore, that he apparently took no action looking to the fulfillment of his intention, as set out in the foregoing letter, until the day when he became seriously ill, would indicate that1929 BTA LEXIS 2459">*2478 it was the serious illness which spurred him to action and caused him to make the gift. In any event, it tends to support, rather that to rebut, the presumption in question.
And here we consider it pertinent to remark that although the decedent's secretary was still alive at the time of the hearing, she was not presented as a witness, nor was a satisfactory explanation given of the failure to call her or to take her testimony on deposition, 16 B.T.A. 1058">*1067 as was done in the case of two other witnesses. She had been employed by the decedent for about 15 years or more and was seemingly highly regarded by him. And, further, it would appear that the carrying out of the detail and the completion of the gift were largely intrusted to this person. Whatever instructions were given would seem to have been given to her and apparently the children got their advice from her as to the designated stocks to be transferred. Under such circumstances, it would seem only reasonable to say that testimony from her as to the mental and physical condition of the decedent when the stocks to be distributed were designated would have been very helpful in reaching a correct conclusion.
The evidence1929 BTA LEXIS 2459">*2479 as to prior Christmas gifts did not establish a prior practice or prior gifts comparable to those here under consideration. The fact that the decedent considered these gifts of sufficient importance to give his children advice by letter in regard thereto and that he referred to the gifts as "substantial" would indicate that these gifts were to be something out of the ordinary. And, further, the closing paragraph in that letter has somewhat the tone of one who might consider his remaining life of short duration, rather than of a person who had no reason to expect death in the near future.
We are, accordingly, of the opinion that on a consideration of the entire evidence, particularly the circumstances attendant upon the making of the gifts and the decedent's health at such time, the petitioners have not established that the gifts by decedent to his children were not made in contemplation of death. The evidence with respect to the gift to Miss Kelley was, if anything, less conclusive than that with respect to the gifts to the children. The fact that the decedent had assisted her in making financial investments, had paid her what Marshall Neal described as a rather low salary, 1929 BTA LEXIS 2459">*2480 though it was far from nominal, and had held her in high regard, are not considered sufficient to show that it was not a gift in contemplation of death, when the gift was apparently made at the the same time as the others in question.
On the question of valuation, no evidence was introduced except as to the stock of the Kansas City Life Insurance Co., bonds of the Kansas City Outer Belt Railroad Co., bonds of the Orient Realty Co., stock of the Kansas City Terra Cotta Co., and the Junction Bill Receivership. We have carefully considered the testimony offered in support of the values contended for and we are of the opinion that it does not overcome the prima facie correcteness of the Commissioner's findings.
Reviewed by the Board.
Judgment will be entered for the respondent.
16 B.T.A. 1058">*1068 MORRIS, dissenting: I am unable to agree with the majority opinion that the evidence does not overcome the presumption that certain gifts made by the decedent within two years of his death were made in contemplation of death within the meaning of section 402(c) of the Revenue Act of 1921.
Contemplation of death is an apprehension of death within the reasonably1929 BTA LEXIS 2459">*2481 near future from some existing bodily or mental condition and not the general expectation of ultimate death entertained by everyone, and such contemplation of death must be the motive which prompted the transfer and without which the transfer would not have been made, in order to include the transferred property in the estate of the decedent subject to tax. United States Trust Co. of New York, Executor,14 B.T.A. 312">14 B.T.A. 312. In Flannery v. Wilcuts, 25 Fed.(2d) 951, the Circuit Court of Appeals for the Eighth Circuit used the following language:
We are also in accord with counsel's statement in his brief that the cases "hold that the thought of death must be the actuating motive without which the gift would not have been made" adding thereto the qualification that the "thought of death" as an anticipation of the inevitable which we all realize is not within the statute; but to be within the statute the thought must arise because of some known infirmity which, it is believed, will likely cause death.
Examining the evidence in the instant proceeding to determine whether it overcomes the presumption that the motive which prompted the transfer was contemplation1929 BTA LEXIS 2459">*2482 of death as above defined, I find that after the attack which Neal suffered in November, 1923, his physician felt that his condition was not such as to indicate immediate death and, furthermore, that if the strain on the heart could be kept down there was no reason why he should not live for an indefinite period and that after his condition became serious in December, 1923, he was not apprised of the seriousness of his condition by the doctor, that his mental condition during November and December of 1923 was keen and alert, he was in a pleasant frame of mind, and his attitude was one of hope and expectancy that he would soon recover, and that he had for some time planned and was still planning, in January, 1924, to go to California. It is further shown that Neal was active up to the time of his death, except of course for the period of his confinement.
It also appears that it was "Neal's practice to make gifts to his children at Christmas time, which at times were more substantial than at others; that he loaned his children money to assist them in business and for purposes of investment; that Neal discussed at various times as far back as 1911 or 1912 the matter of giving his1929 BTA LEXIS 2459">*2483 children property, stating that he thought it better to distribute his estate and not wait until his children might receive it in a lump sum, in order that they might learn to use it intelligently and in order 16 B.T.A. 1058">*1069 that they might have the benefit of his advise in so doing. Letters dated December 15, 1923, written by Neal to two of his children prior to the time his condition was considered serious, conveyed his desire to make them a substantial 1923 Christmas gift and his intention to have it effected as soon as possible.
While it is usually difficult to determine motivating factors operating in one's mind, it is my opinion that the letters of December 15, 1923, addressed to his children prior to the time that even his physician considered his condition alarming, more clearly evidence the purpose of the gifts than inferences drawn from the other facts of record. Admittedly, the gift was not prefected until a short time later, during which there was a decided changed in Neal's condition, but the motive of the gift was clearly evidenced prior thereto. The decedent's changed condition during the lapse of time incident to the formalities of the execution of the gifts does1929 BTA LEXIS 2459">*2484 not affect his expressed intention to make these gifts as a Christmas present for 1923.
Considering the above facts, I am of the opinion that the statutory presumption that the gifts were in contemplation of death has been overcome. See William L. Nevin, Executor,16 B.T.A. 15">16 B.T.A. 15.
GREEN and SIEFKIN agree with this dissent.