1930 BTA LEXIS 1882">*1882 1. Transfers of securities by the decedent to his son, within two years prior to his death, are held, upon the evidence, not to have been made in contemplation of death.
2. The amount of the liability under a judgment which has become final through affirmance by the highest court of the State, is deductible as a claim against the estate.
3. An estate claiming deductions for charitable bequests, for the purpose of determining the value of the net estate, must produce evidence sufficient to establish their deductibility under the statute. Proof of the names of the legatees, the fact that they are incorporated, and their designation as a Catholic church and school, is not enough.
4. A credit claimed by an estate (sec. 301(b), Revenue Act of 1924) on account of New York inheritance tax, part of which was actually paid and part of which was deposited pursuant to the State law, is denied for failure to establish (1) what part if any of the amount deposited might fairly be regarded as actually paid, and (2) whether any of the amount actually paid or deposited is "in respect of any property included in the gross estate."
21 B.T.A. 279">*279 This proceeding involves a deficiency of $15,860.73 in estate taxes. Petitioners contest the inclusion in decedent's gross estate of the value of securities transferred to his son within two years of death; the disallowance of deductions of alleged charitable bequests and a claim against the estate; and the disallowance of credit for State taxes alleged to have been paid.
FINDINGS OF FACT.
Petitioners are the duly authorized executors of the estate of Edward Moore, deceased, who died a resident of the State of New York on August 6, 1924, at the age of 86.
1. On June 18, 1923, decedent gave to his son, Edward C. Moore, Jr., specified United States certificates or Treasury bonds amounting to $100,000. Again on October 17 and December 24, 1923, he gave his son specified United States certificates or Treasury bonds amounting to $130,000 and $150,000, respectively. The transfers of the securities were not made by decedent in contemplation of death.
2. On May 13, 1930, the Supreme Court of New York State, after affirmance on appeal to the Court of1930 BTA LEXIS 1882">*1884 Appeals, entered a final judgment 21 B.T.A. 279">*280 for $49,749.46 and costs of $248.90 in favor of John L. Curley and Jessica Shewan, executors, against petitioners as executors of Edward Moore's estate, and others. Of said judgment and costs, the share to be paid by the petitioners is $19,465.07.
3. By the second clause of his will decedent bequeathed $1,000 for repairs to St. Stephens Church, a Catholic church of Schuylkill County, Pennsylvania, and by the third clause he bequeathed $500 to the Sisters of St. Stephens School for the general educational purposes of the school. Both beneficiaries are incorporated. Neither bequest has yet been paid.
4. The Surrogate of Kings County, New York, on August 8, 1928, made a "Decree Assessing and Fixing Tax" of which $475.37 was upon the bequests directly to children, and $980 was upon contingent remainders. The former amount has been reduced to $451.60 and has been paid. The latter amount of $980 was deposited "as provided by section 241 of the New York Tax Law."
OPINION.
STERNHAGEN: 1. There is evidence to support the conclusion that the transfers of securities made by decedent to his son were not made in contemplation of death1930 BTA LEXIS 1882">*1885 and there is also evidence against such conclusion. Since each case involving this question must be decided by weighing the evidence in the record, it would serve no useful purpose to narrate or discuss it at length. Bearing in mind at all stages of our consideration that the burden is upon the petitioner to prove facts sufficient to overcome the statutory presumption and the Commissioner's determination, , we think the preponderance of the evidence supports the petitioner and have therefore found as a fact that the transfers were not made in contemplation of death. The value of the securities and accrued interest should be excluded from the gross estate.
2. The respondent disallowed any deduction in respect of the Shewan judgment because "this case is still in litigation." It has now reached a final judgment and the petitioners' share of the liability is $19,465.07. It is a definitely ascertained claim against the estate and a proper deduction.
3. The only evidence to establish that the legatees St. Stephens Church and St. Stephens School are within the statutory description of corporations "organized and operated1930 BTA LEXIS 1882">*1886 exclusively for religious, charitable, scientific, literary, or educational purposes * * * no part of the net earnings of which inures to the benefit of any private stockholder or individual," consists of the names, the fact that they are incorporated, and their designation as a Catholic church and school. This is not enough. ; 21 B.T.A. 279">*281 ; . While the Commissioner disallowed this claimed deduction for want of proof of payment, the Board must have evidence sufficient to establish deductibility under the statute. , affirming . The disallowance of the deduction is sustained.
4. The petitioners claim a credit (no doubt under section 301(b)) of $1,431.60 for New York State inheritance tax. The evidence is clear that $451.60 has been actually paid, as the statute requires. The $980 has only been deposited, and there is nothing to indicate what part if any might fairly be regarded as actually paid. The deposit1930 BTA LEXIS 1882">*1887 is apparently treated in New York not as payment of the tax but as "merely security for the subsequent payment of the tax." . Nor is there any evidence to show whether any of the amount actually paid or deposited is "in respect of any property included in the gross estate." Only if it was, is the credit provided, ; ; , and in the absence of such evidence the credit must be denied. This is manifestly an unsatisfactory disposition of an issue so easily determinable on its merits. But the statute is clear, the burden of proof plainly allotted to petitioners, and it is not for us to depart from them by assuming facts which petitioners should and could so easily have proven.
Judgment will be entered under Rule 50.