*302 Decision will be entered under Rule 50.
In 1933 petitioner made a transfer in trust for the benefit of his first wife in pursuance of a separation agreement. Such transfer was in consideration for her release of both her support rights and property rights arising out of the marital relationship. In 1942 petitioner similarly made two transfers in trust for the benefit of his second wife in pursuance of a separation agreement. Such transfers were also in consideration of her release of both her support rights and property rights arising from the marital relationship. Petitioner's daughter by his second marriage received a remainder interest in each of the 1942 trusts.
1. Held, under authority of Commissioner v. Barnard, 176 Fed. (2d) 233, that the interests received by petitioner's first and second wives from the 1933 and 1942 transfers in trust were taxable as gifts to the extent they exceeded the value of their respective support rights in the trusts. Harris v. Commissioner, 340 U.S. 106">340 U.S. 106, distinguished on the facts.
2. Amount of the gifts to petitioner's first and second wives and his daughter resulting*303 from the 1933 and 1942 transfers in trust determined for the purpose of petitioner's 1942 gift tax liability.
*169 Respondent determined a deficiency in petitioner's gift tax for the calendar year 1942 in the amount of $ 63,138.83 arising from two transfers in trust petitioner made in the taxable year pursuant to a separation agreement with his second wife, Louise Hunt McMurtry. Both trusts provided annuities for his wife until her death*304 or remarriage; upon the occurrence of either of these events all rights in the trusts passed to petitioner's daughter by his second marriage, Louise Hunt McMurtry. Previously in 1933 petitioner had made a transfer in trust for the benefit of his first wife, Mabel Post McMurtry, during her life, pursuant to a separation agreement. In each separation agreement the wife agreed to release both her marital support rights and her marital property rights in consideration for the transfers in trust. Respondent contends that the interests received by petitioner's wives from the 1933 and 1942 trusts, respectively, constituted gifts to the extent they exceeded marital support rights therein. Furthermore he contends that the amount of such gift to the first wife is properly includible in determining the gift tax owing on the 1942 transfers in trust. Petitioner denies that the respective interests received by his two spouses in these three trusts were gifts in any part. Both parties agree that the remainder interests in the 1942 trusts acquired by petitioner's daughter represent gifts, but they disagree as to their valuation for gift tax purposes. Thus there are three questions for determination*305 in this case:
(1) Did the interests transferred to petitioner's wives by the 1933 and 1942 transfers in trust constitute gifts to the extent, if any, they were in consideration for the release of the respective marital property rights of the wives?
(2) If the first question is answered in the affirmative, did the value of the interest transferred to petitioner's first wife by the 1933 trust and the value of the respective interests conveyed to his second wife by the 1942 trusts exceed the value of the respective marital support rights of the wives therein at the time of transfer: If so, what was the amount of this excess with respect to each trust?
(3) What was the value of the remainder interests acquired by petitioner's daughter from the 1942 trusts at the time of transfer?
FINDINGS OF FACT.
Part of the facts were stipulated and are so found.
Petitioner is an individual residing at Bar Harbor, Maine. On March 11, 1943, petitioner filed his Federal gift tax return for the calendar year 1942 with the collector of internal revenue for the first district of Maine.
Petitioner and Mabel Post McMurtry were married December 16, 1903, and lived together as husband and wife until 1932. *306 In the fall *170 of 1932 petitioner and his wife separated and on June 30, 1933, entered into a written separation agreement whose terms were negotiated by their respective counsel. This agreement provided for complete settlement of all property interests and all obligations arising out of the marital relationship. The agreement stated in part that petitioner would pay his spouse $ 30,000 yearly in equal monthly installments so long as she lived, such payments to be effectuated by means of a trust indenture. Mabel Post McMurtry agreed therein to accept this annuity in full satisfaction of "any and all existing obligations of the party of the first part to the party of the second part, whether arising out of marital relationship or otherwise * * *." Each party released "any and all interest in and to the property or estate of the other, based upon or arising out of the marital relation * * *." The agreement further stated that should the parties hereto be divorced at any time, "this agreement shall nevertheless remain in full force and effect and any decree of divorce entered in any court of competent jurisdiction shall not contain any provisions contrary to the terms of this*307 agreement * * *, but may have incorporated therein any of the provisions of this agreement." After the separation but prior to the separation agreement petitioner paid his wife $ 2,500 per month as living expenses.
Also on June 30, 1933, in pursuance of the separation agreement petitioner established a trust for the benefit of Mabel Post McMurtry, hereinafter referred to as the Mabel Post McMurtry Trust. The corpus of the trust consisted of securities whose value on June 30, 1933, was approximately $ 721,312.50. The trust indenture named the Chase National Bank of New York as trustee and provided that the trustee pay out of the trust income $ 2,500 monthly to petitioner's wife starting on August 20, 1933, plus any income taxes thereon for which she might be liable. The trust indenture further stated that any time after December 31, 1934, petitioner's wife was entitled to withdraw from the trust corpus up to $ 60,000 in installments or all at one time. In the event the full $ 60,000 was withdrawn, the monthly payments to her were to be reduced to $ 2,275 per month and proportionately less reduced if the withdrawals were smaller. There was no provision in the trust for termination*308 of the payments in the event of Mabel Post McMurtry's remarriage. The trustee was authorized, where the trust income was insufficient to pay the annuity, to sell enough of the corpus to make up the difference so that each monthly payment would be met in full and petitioner agreed to replenish the corpus after any such diminution. Upon the death of Mabel Post McMurtry the indenture provided that the principal of the trust should be paid over to petitioner or his appointees.
On June 30, 1933, the effective date of the transfer in trust, the value of Mabel Post McMurtry's interest in the trust was $ 353,884.80 and *171 the value of her support rights therein was $ 238,530.30. The transfer in trust constituted a gift to her to the extent of $ 115,354.50.
On October 5, 1933, Mabel Post McMurtry obtained an absolute divorce from petitioner in the Superior Court of the State of Maine. The decree contained no provision for alimony and made no reference to the separation agreement.
On October 25, 1933, petitioner married Louise Hunt McMurtry and on November 15, 1935, a daughter, Louise Hunt McMurtry, was born. On June 7, 1941, petitioner and his second wife separated and on May 21, *309 1942, entered into a written separation agreement negotiated by their respective counsel. The agreement became effective immediately upon its execution on the date named. This agreement effectuated a complete settlement between them of all property rights and obligations arising out of the marital relationship and provided for the custody and support of the child. It stated in part that petitioner had executed two trust agreements simultaneously with the signing of the separation agreement and that Louise Hunt McMurtry agreed to accept these trusts "in full satisfaction of any and all claims to support for herself" and "in full satisfaction of any and all claims and rights of whatsoever nature which she ever had, now has, or might hereafter have against the Husband by reason of their relationship as husband and wife or otherwise, including any claim to or right of dower, inchoate dower, reasonable share, or any other division of property." Each of the parties released "all rights or claims whatsoever in the other's respective estate, real or personal, now owned or hereafter acquired." Paragraph 7 of the agreement stated:
In the event that at any time hereafter a final judgment *310 or decree of divorce shall be rendered between the parties in a court of competent jurisdiction, * * * this agreement shall remain in full force and effect, and the provisions hereof may be embodied in such judgment or decree if the court granting such decree shall deem proper.
After the separation and prior to the separation agreement petitioner paid his wife's living expenses of approximately $ 800 per month.
On May 21, 1942, petitioner also executed the two trust indentures mentioned in the separation agreement. They are hereinafter referred to as the Louise Hunt McMurtry Trust No. 1 and Louise Hunt McMurtry Trust No. 2. In each of them the Chase National Bank of New York was named as trustee.
The indenture of Louise Hunt McMurtry Trust No. 1 called for payment of $ 500 a month to petitioner's second wife from the trust income until her death or remarriage, starting in September 1942. The trustee was authorized to sell part of the trust corpus to meet the *172 monthly payments whenever the trust income was insufficient, and petitioner agreed to replenish the trust corpus in the event it was thus depleted. Petitioner's daughter, Louise Hunt McMurtry, was the beneficiary*311 of any balance of trust income after the $ 500 per month payments were made to her mother until the latter remarried or died, and thereafter the daughter was the sole beneficiary of the trust income during her life. The trust was to terminate upon the daughter's death and corpus paid to her issue.
The effective date of transfer for Louise Hunt McMurtry Trust No. 1 was July 20, 1942, when the securities comprising its corpus were assigned to the Chase National Bank in trust. At that time the value of petitioner's second wife's interest in the trust amounted to $ 79,556.63 and the value of her support rights in the trust was $ 38,429.34. The transfer in trust constituted a gift to her to the extent of $ 41,127.29.
The value of petitioner's daughter's interest in this trust on July 20, 1942, was $ 71,080.87, which amount constituted a gift to her from petitioner.
The trust indenture of Louise Hunt McMurtry Trust No. 2 provided that one-third of the corpus of the Mabel Post McMurtry Trust should be held in trust, and, after Mabel Post McMurtry died, petitioner's second wife was to be paid $ 500 monthly from the income thereof until her death or remarriage starting the month after Mabel*312 Post McMurtry's death. If the trust income was insufficient to pay Louise Hunt McMurtry $ 500 a month, the indenture provided for the balance to be made up out of the trust principal. Petitioner's daughter was the beneficiary of any remaining trust income after the monthly payments to petitioner's second wife until the time the latter should die or remarry whereupon the daughter was the sole beneficiary of the trust income during her life. The trust was to terminate upon the death of the daughter and the corpus paid to her issue.
The effective date of transfer for Louise Hunt McMurtry Trust No. 2 also was July 20, 1942, when one-third of petitioner's remainder interest in the Mabel Post McMurtry Trust was assigned to the Chase National Bank in trust. At that time Mabel Post McMurtry was alive and had withdrawn no part of the $ 60,000 to which she was entitled from the corpus of the Mabel Post McMurtry Trust. The value of her interest in Louise Hunt McMurtry Trust No. 2 on this date amounted to $ 81,356.61.
The value of petitioner's second wife's interest in the Louise Hunt McMurtry Trust No. 2 on July 20, 1942, was $ 35,680.17. The value of her support rights in this trust on*313 the same day was $ 9,166.26. The interest transferred to petitioner's second wife by this trust was a gift to the extent of $ 26,513.91.
*173 The value of petitioner's daughter's interest in Louise Hunt McMurtry Trust No. 2 on July 20, 1942, was $ 92,523.20, which amount constituted a gift to her from petitioner.
On July 13, 1942, Louise Hunt McMurtry obtained an absolute divorce from petitioner in the First Judicial District Court of Nevada. The decree recited that petitioner and his second wife had entered into the separation agreement of May 21, 1942, and stated in part:
It is further ordered, adjudged and decreed that the said agreement entered into between the plaintiff and the defendant on May 21, 1942, be, and the same hereby is, approved.
Petitioner reported the two transfers in trust made in 1942 in a Federal gift tax return filed on March 11, 1943. He reported these transfers as not being subject to gift tax except as to the value of the remainder interests in the trusts passing to his daughter. Petitioner subtracted the value of the annuity settled on his second wife by each of the 1942 trusts from the value of the principal of each of these trusts and returned*314 the value of the remainder in the Louise Hunt McMurtry Trust No. 1 as zero and the value of the remainder in the Louise Hunt McMurtry Trust No. 2 as being $ 10,000. Claiming a specific exemption of $ 40,000 petitioner showed no tax due on his return.
In determining a deficiency of $ 63,138.83 respondent included in petitioner's return as taxable gifts in 1942 the full value of the corpus of Louise Hunt McMurtry Trust No. 1 and the present worth of the interests of both Louise Hunt McMurtry and her daughter in Louise Hunt McMurtry Trust No. 2. He also included in determining the taxable basis for these gifts the value of petitioner's first wife's interest in the Mabel Post McMurtry Trust created in 1933. Respondent does not attempt in this proceeding to sustain the full amount of the deficiency determined against petitioner. Since the issuance of the deficiency notice, he has changed his position regarding the gift tax consequences of transfers such as petitioner made in 1933 and 1942. Respondent now contends that the interests received by petitioner's spouses from the 1933 and 1942 trusts constitute gifts only to the extent they exceeded the respective marital support rights *315 of the wives therein.
OPINION.
To determine petitioner's gift tax liability for the calendar year 1942 arising out of two transfers in trust he made in that year for the benefit of his second wife, Louise Hunt McMurtry, and his daughter, Louise Hunt McMurtry, we must first decide whether the interest he transferred to his first wife, Mabel Post McMurtry, by the transfer in trust in 1933 and the interests he transferred to *174 his second wife by the two trusts created in 1942 constitute gifts 1 to the extent, if any, they exceeded the respective support rights of the two wives in these trusts. The separation agreements between petitioner and each wife pursuant to which the transfers in trust were carried out make it clear that the interest thereby acquired by each wife was in consideration of her release of both her support rights and property rights arising out of the marital relationship.
*316 Respondent's position on this issue is taken from E. T. 19, 1946-2 C. B. 166, which states:
Transfers of property pursuant to an agreement incident to divorce or legal separation are not made for an adequate and full consideration in money or money's worth to the extent that they are made in consideration of a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or other marital rights in the transferor's property or estate; to the extent that the transfers are made in satisfaction of support rights the transfers are held to be for an adequate and full consideration. The value of relinquished support rights shall be ascertained on the basis of the facts and circumstances of each individual case.
Thus, it is his contention that such portion of the three transfers in trust as was allocable to the release by each wife of her marital property rights is to be considered as not made for adequate and full consideration and therefore taxable as a gift.
Petitioner, however, emphasizes the interests received by each wife in the trusts were transferred to them pursuant to a separation agreement*317 negotiated by independent counsel. Therefore they did not constitute gifts within the meaning of the applicable statute since they were made without donative intent but solely in consideration for the release by each wife of her presently enforceable claims to support and to property rights arising out of the marriage relationship. He cites a long line of cases decided by this Court supporting his contention starting with Herbert Jones, 1 T. C. 1207, and ending with Edward B. McLean, 11 T.C. 543">11 T. C. 543. The last case specifically rejected as invalid that part of E. T. 19, supra, which states that release of marital property rights is not full and adequate consideration in money or money's worth.
By virtue of the Supreme Court's decisions in Merrill v. Fahs, 324 U.S. 308">324 U.S. 308, and Commissioner v. Wemyss, 324 U.S. 303">324 U.S. 303, it has been well established that a promise or agreement in an antenuptial property *175 settlement to release marital property rights is not adequate and full consideration in money or money's worth for the transfer of property within the*318 meaning of section 1002 of the Code so that such a transfer is taxable as a gift.
It is now clear from the Supreme Court's decision in the recent case of Harris v. Commissioner, 340 U.S. 106">340 U.S. 106, that the rationale of the Merrill and Wemyss cases is also applicable to postnuptial settlements, where it can be said that the transfer of property was effected by the promise or agreement of the spouses. In such an instance the transfer of property is taxable as a gift to the extent it was made in consideration for the release of marital property rights. Where the postnuptial settlement is followed by entry of a divorce decree, we have the preliminary question whether the transfer of property was founded upon the promise or agreement or upon the divorce decree. If it be determined that the divorce decree effected the transfer of property between the parties, then there is no promise or agreement concerning marital rights in property to which the principles of Merrill and Wemyss cases are applicable, and any transfers of property are free from gift tax liability.
We are faced with this preliminary question both in regard to the transfer in*319 trust to Mabel Post McMurtry in 1933 and the two transfers in trust to Louise Hunt McMurtry in 1942, for in each instance the separation agreement between the spouses was followed by entry of a divorce decree. It is clear that where the property settlement agreement is later litigated before the divorce court, any transfers of property between husband and wife are founded on the divorce decree rather than the promise or agreement of the parties, for it is the decree which created and fixed the property rights and obligations of the parties. See Commissioner v. Converse, 163 Fed. (2d) 131. But neither of petitioner's property settlements with his wives was litigated before the divorce court. It is also established that where by the terms of the property settlement agreement its operation is conditioned in any manner upon entry of a divorce decree, then the decree and not the agreement creates and fixes the rights and obligations of the parties and effects the transfer of property between the spouses. This was the holding in Commissioner v. Maresi, 156 Fed. (2d) 929. We understand the decision of the Supreme Court*320 in the Harris case to be no more than an affirmation of this principle even where the postnuptial settlement also provides that its covenants should survive the divorce decree and the decree adopted the agreement including this proviso.
We are convinced that the facts surrounding the transfer in trust to Mabel Post McMurtry and the transfers in trust to Louise Hunt McMurtry are so entirely different from the facts considered to be *176 decisive by the Supreme Court in the Harris case that our determination is not governed by that decision. The holding of the Supreme Court in Harris v. Commissioner, supra, that the transfer of property to the husband was not taxable as a gift was hinged on the fact that the effective operation of the property settlement was by its terms subject to a condition precedent, that there be an entry of a divorce decree. In the present case it is apparent from the terms of the postnuptial agreement between petitioner and Mabel Post McMurtry that its effectiveness was in no way dependent on the entry of a divorce decree. Furthermore, when she obtained a divorce, the decree failed to provide for alimony and *321 made no mention of the separation agreement. It follows that the transfer in trust for her benefit was solely founded upon and made effective by the promise or agreement of the parties. Thus we hold that to the extent the transfer was in consideration for the release of her marital property rights, it is taxable as a gift under section 1002 of the Code.
We are equally convinced that the transfers in trust for the benefit of Louise Hunt McMurtry were founded upon and made effective by the separation agreement of the parties. The effectiveness of their agreement was in no way made dependent upon the entry of a divorce decree, nor was it executed to effect a settlement in the event a divorce should be decreed, nor was it provided that the agreement should be submitted to the divorce court for its approval, all of which facts were present in the Harris case. On the contrary, paragraph 7 of the agreement provided "In the event that at any time hereafter a final judgment or decree of divorce shall be rendered between the parties in a court of competent jurisdiction, * * * this agreement shall remain in full force and effect, and the provisions hereof may be embodied in such judgment*322 or decree if the court granting such decree shall deem proper." Such language clearly indicates that petitioner and his wife intended to put into operation the terms of their property agreement completely independent of whether or not there ever was a divorce. The separation agreement did not require that its provisions be submitted to the court for approval or any judicial action and did not require that they be embodied in the decree of divorce should there be such decree. Moreover, the trust indentures for the benefit of Louise Hunt McMurtry were executed by petitioner the very same day as the agreement and in compliance therewith. Finally, unlike the Harris case, upon the execution of the property settlement, there was at once an existing agreement which created property rights and which either party could enforce.
Thus we are convinced that the transfers in trust to Louise Hunt McMurtry were effected by the separation and trust agreements. We reach this conclusion despite the fact that a divorce court subsequently *177 embodied the provisions of the agreement in the divorce decree pursuant to the permissive provision in the agreement therefor. We do not interpret*323 the Supreme Court's decision in the Harris case to mean that under such circumstances the transfers would be effected by the decree. Rather we believe such facts bring the transfers within the ambit of the decision of the Supreme Court in that case, that where spouses simply undertake a voluntary, contractual division of their property interests, transfers of property between them are effected by their promise or agreement, and are thus subject to the gift tax to the extent they are in consideration for the release of marital property rights.
Our conclusion is supported by the decision of the Court of Appeals for the Second Circuit in Commissioner v. Barnard, 176 Fed. (2d) 233, on facts basically similar to those here. In that case the separation agreement provided for the payment of money to the husband in return for release of his marital rights. The agreement also stated that in the event of a decree of separation or divorce, the provisions of the agreement might be embodied in the decree, provided that no insertion in any such decree of any of the provisions of this agreement should affect or alter the terms of this agreement. Subsequently*324 the parties were divorced, but prior to that time payment was made to the husband. The divorce decree adopted and approved the agreement. Despite such ratification of the agreement, it was held that the payment was founded on the agreement rather than the decree and was therefore taxable as a gift since the release of marital property rights was not full and adequate consideration therefor.
We therefore hold that to the extent the transfers in trust for the benefit of Louise Hunt McMurtry were in consideration for the release of her marital property rights, they are taxable as gifts.
Specific valuation questions remain to be decided in order to determine petitioner's gift tax liability for 1942. We must ascertain the value of the respective interests received by petitioner's wives from the 1933 and 1942 trusts as well as the value of their respective marital support rights in these three trusts in order to determine whether the value of the former exceeded the value of the latter as to each trust. The amount of excess, if any, with respect to each trust represents the consideration paid for the release of marital property rights and constitutes a gift by petitioner. Furthermore*325 we found as a fact that the remainder interests received by petitioner's daughter from the 1942 trusts were gifts. Thus the value of these remainder interests at the time of transfer must also be determined.
We are guided in our determination of these valuation questions by section 1005 of the Code which states that where gifts are made in property, their values at the date the gifts are made shall be considered the amount of the gifts.
*178 There is a wide disparity in the values the respective parties assign to the transfers made in 1933 and 1942. Petitioner advances three specific challenges to the manner in which respondent computed the value of the alleged gifts at the time they were made.
Petitioner first objects to the formula by which respondent allocated the interests received by the two wives from the 1933 and 1942 transfers between their release of support rights and their release of marital property rights. Where, as in the instant case, there is no evidence in the separation agreements, trust indentures or elsewhere that the husband and wife made any segregation or allocation between the two types of marital rights, then a reasonable allocation between support*326 rights and property rights must be made based on all the facts and circumstances. Respondent's valuation of the support rights is based on the present worth of the monthly payments each wife was entitled to receive under the trusts, but limited to the period both husband and wife were alive and she remained single. This limitation was in recognition of the fact that under a decree of divorce or legal separation a husband's duty to support ordinarily ceases on the death of either party or upon the wife's remarriage. The worth of the interest received by Mabel Post McMurtry from the 1933 trust on June 30, 1933, and the worth of the interests received by Louise Hunt McMurtry from the 1942 trusts on July 20, 1942, above and beyond the value of their respective support rights are considered by respondent to be allocable to the release by the wives of their marital property rights and therefore to constitute the amount of the gifts.
Petitioner first claims that all the interests received by the two spouses from the 1933 and 1942 trusts were in consideration solely of their release of support rights. But the only basis in the record for this view is petitioner's self-serving statement*327 as to the interests transferred to Mabel Post McMurtry in 1933 that "it was all for her support." In the absence of corroborating evidence and in the face of the dual purpose of the transfers in trust mentioned specifically in the separation agreements we are unwilling to accept petitioner's view.
Petitioner then objects to the support rights limitations employed by respondent on the ground that respondent failed to consider the amount of petitioner's annual income, the extent of his assets, and other allied circumstances. Yet in his own computation of the value of the support rights petitioner offers no different approach but also computes the present worth of the annuities of each wife for the period of the combined lives of husband and wife limited by her remarriage. This formula is not inconsistent with the living expenses of $ 2,500 per month paid Mabel Post McMurtry and approximately $ 800 per month paid Louise Hunt McMurtry during the period between actual separation from petitioner and the execution of a separation agreement. In *179 view of the above facts we accept the formula adopted by respondent to determine the value of the support rights of the wives as reasonable.
*328 The second objection raised by petitioner to respondent's computation of the amounts of the alleged gifts concerns the value of Mabel Post McMurtry's interest in the Mabel Post McMurtry Trust on June 30, 1933. Respondent's actuarial expert testified the value of this interest was $ 353,884.80. Petitioner seeks to hold respondent to the value set out in the notice of deficiency of $ 344,658.15, but he introduced no evidence on this point whatsoever. Respondent is not precluded by the valuation made in his notice of deficiency from asserting a different valuation at the hearing, and in the absence of contrary evidence we hold the value of Mabel Post McMurtry's interest to be $ 353,884.80.
Petitioner's final and most sweeping objection to the valuation of the alleged gifts made by respondent is in regard to the actuarial aids employed by the latter. He states respondent used for his actuarial computation of the interests and support rights involved an arbitrary and outmoded mortality table, the Actuaries' or Combined Experience Table of Mortality, and an excessive rate of interest, 4 per cent. Petitioner vigorously contends that the 1937 Standard Annuity Table and 2 1/2 per cent*329 rate of interest should be used to compute the true fair market value of the annuities and support rights. In reply to respondent's contention that Gift Tax Regulations 108, section 86.19 (f) (4) 2 governs the valuation of the wives' interests and support rights and prescribes the use of the Actuaries' or Combined Experience Table of Mortality and an interest rate of 4 per cent, petitioner asserts first that the regulations do not prescribe a method of computation for the valuations here involved, and secondly, if they do require the table and interest rate used by respondent, then they are invalid as arbitrary and unreasonable.
*330 We are in accord with petitioner that Regulations 108, section 86.19 (f) (4) does not cover valuation of annuities where a remarriage factor is involved as was true in the case of the support rights of both wives and the interests of petitioner's second wife in Louise Hunt *180 McMurtry Trusts No. 1 and No. 2. Respondent's actuarial expert admitted that no regulation had been issued covering valuation of annuities where a remarriage factor played a part, and he could only do the best possible under the circumstances. However, in determining the value of petitioner's first wife's interest in the Mabel Post McMurtry Trust on June 30, 1933, and the value of her interest in Louise Hunt McMurtry Trust No. 2 on July 20, 1942, we hold the cited subsection of the Regulations applies, for she had a "life interest" in an annuity unrestricted by the possibility of remarriage in each instance. Petitioner's argument that section 86.19 (f) (4) does not apply in these two situations is based on the fact Mabel Post McMurtry had an annuity for life and not a life estate in the trust but the words of the section calling for use of the Actuaries' or Combined Experience Table of Mortality and*331 4 per cent interest mention only a "life interest" which is just what she possessed.
Regardless of the fact that some of the valuations come within the scope of respondent's regulations and others fall outside, the question for determination remains the same, whether the gift valuations made by respondent using the Combined Experience Table of Mortality and 4 per cent rate of interest were unreasonable.
Petitioner's actuarial experts testified at length that the Actuaries' or Combined Experience Table of Mortality was so outmoded and 4 per cent rate of interest was so excessive that no insurance company writing annuities used them any more for valuation purposes. They testified that a commercial annuity's price in 1942 would be based on the 1937 Standard Annuity Table and an interest rate of 2 1/2 per cent. Furthermore petitioner cites Anna L. Raymond, 40 B. T. A. 224, affd., 114 Fed. (2d) 140, certiorari denied, 311 U.S. 710">311 U.S. 710, where we rejected the use of respondent's mortality table in the valuation of annuities.
Yet, despite these assertions, petitioner has not convinced us the use of the Actuaries' *332 or Combined Experience Table of Mortality and the 4 per cent rate of interest was arbitrary and unreasonable. The fact that private insurance companies no longer use them is not conclusive, for as we said in Estate of Charles H. Hart, 1 T.C. 989">1 T. C. 989, 991, and Estate of Koert Bartman, 10 T. C. 1073, 1079, estate and gift tax regulations have always distinguished between annuities issued by insurance companies which are conservatively calculated for their own financial advantage and other annuities, and such distinction is justifiable. Nor is the case of Anna L. Raymond, supra, of much aid to petitioner, for as we pointed out in Estelle May Affelder, 7 T. C. 1190, 1194, the question in that case was unique in that the annuities had to be purchased from an insurance company so that the amounts of the annuities necessarily *181 had to be computed by the use of mortality tables employed by insurance firms. In the instant case there is no such necessity for adhering to the practices of insurance companies. Furthermore, the Raymond case involved income taxes, *333 not the gift tax.
The Combined Experience Table of Mortality and 4 per cent interest rate have been employed for many years in the computation of the value of annuities and it is interesting to note their widespread use today by states for estate and inheritance tax purposes. Currently some 15 states use this table with 4, 5, and 6 per cent interest. No state has as yet adopted the 1937 Standard Annuity Table or 2 1/2 per cent interest rate for these purposes. See Prentice-Hall, Inheritance and Transfer Tax Service, 11th Edition, vol. 1, pages 801-803.
We note that in Estate of Charles H. Hart, supra, and even more recently in Estate of Koert Bartman, supra, contentions similar to petitioner's were made, and yet we held that for the purpose of valuing annuities the respondent's table of mortality and interest rate were not arbitrary. Approval of the valuation we made in Estate of Abraham Koshland, 11 T. C. 904, by means of the Combined Experience Table of Mortality has been expressed by the Court of Appeals for the Ninth Circuit in Koshland v. Commissioner, 177 Fed. (2d) 851.*334 In the case of Huntington National Bank of Columbus, Ohio, 13 T.C. 760">13 T. C. 760, we used this table and only failed to use 4 per cent interest rate because it was shown the effective yield on the investments in taxpayer's estate was in fact less than 4 per cent, a circumstance which has not been shown to exist here.
Finally petitioner himself employed the Combined Experience Table of Mortality and 4 per cent rate of interest to compute the support rights of Mabel Post McMurtry in the 1933 trust. We think that the use of this table and interest rate was reasonable in 1933 to compute not only the value of her support rights but also the value of her interest in this trust. We also believe that conditions have not so changed since 1933 as to render the use of such table and interest rate inappropriate in computing the value of the interests received by Louise Hunt McMurtry from the 1942 trusts and the value of her support rights therein.
Therefore using respondent's valuations computed by means of the Combined Experience Table of Mortality and 4 per cent interest rate, we found that the value of Mabel Post McMurtry's interest in the 1933 trust amounted to $ 353,884.80*335 at the time of transfer, and that the value of her support rights in the trust at that time was $ 238,530.30. Thus we found as a fact and now hold that the excess in the value of her interest over the value of her support rights, amounting to $ 115,354.50, was a gift. Similarly we found that Louise Hunt McMurtry's *182 interest in the Louise Hunt McMurtry Trust No. 1 had a value of $ 79,556.63 at the time of transfer, while her support rights therein were worth only $ 38,429.34. Thus we found as a fact and hold that she thereby received a gift of $ 41,127.29. Turning then to Louise Hunt McMurtry Trust No. 2 we found the value of petitioner's second wife's interest therein was $ 35,680.17 and the value of her support rights in the trust amounted to but $ 9,166.26. Therefore we found as a fact and hold that by this transfer she received a gift of $ 26,513.91. From the 1942 trusts, No. 1 and No. 2, we found as a fact and hold that petitioner's daughter received gifts of $ 71,080.87 and $ 92,523.20, respectively.
Decision will be entered under Rule 50.
Footnotes
1. The terms of section 1002 of the Internal Revenue Code applying to the 1942 trusts and section 501 (b) of the Revenue Act of 1932 applying to the 1933 trust have the same language.
SEC. 1002. TRANSFER FOR LESS THAN ADEQUATE AND FULL CONSIDERATION.
Where property is transferred for less than an adequate and full consideration in money or money's worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this chapter, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.↩
2. REGULATIONS 108.
Sec. 86.19 Valuation of Property. -- * * *
(f) Annuities, life estates, remainders and reversions. -- * * *
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(4) Actuarial calculations by Bureau↩. -- If in the case of a completed gift an annuity is to be paid during the life of an individual and in any event for a definite number of years, or for more than one life, or in any other manner rendering inapplicable both Table A and Table B, the case may be stated to the Commissioner, who will thereupon furnish the applicable factor. In making such calculations when life interests or remainders upon life interests are involved, use will be made of the Actuaries' or Combined Experience Table of Mortality, as extended (that being the basis of Table A), with interest at 4 per cent per annum compounded annually.