1930 BTA LEXIS 2345">*2345 The decedent transferred certain property on May 21, 1918. He died January 18, 1924. The respondent included the value of the property transferred in the decedent's gross estate under section 402(c) of the Revenue Act of 1921. The transfer was not made in contemplation of death; it was not intended to take effect in possession or enjoyment at or after the decedent's death; and in any event, the transaction constituted a bona fide sale for a fair consideration in money or money's worth.
19 B.T.A. 683">*684 The Commissioner determined a deficiency of $85,471.22 in estate taxes of the estate of Jacob Siegel, deceased. The petitioner alleges that the Commissioner erred in including in the gross estate of the decedent, the value of a leasehold interest in certain property, which interest was transferred by the decedent prior to his death. The petitioner's contentions are, (1) the transfer was not made in contemplation of death; (2) it was not intended to take effect in possession or enjoyment at or after the decedent's death; 1930 BTA LEXIS 2345">*2346 (3) even if it were so intended, the respondent's action in including the value of the property in the decedent's gross estate is unconstitutional; (4) in any event the transaction was a bona fide sale for a fair consideration in money or money's worth; and (5) regardless of all these issues the respondent erred in valuing the decedent's interest in the property at $600,000.
FINDINGS OF FACT.
The petitioner is the duly appointed and qualified executor of the estate of Jacob Siegel. He resides in Detroit, Mich.
Jacob Siegel died testate January 18, 1924, at the age of eighty-two years, four months and two days. He left surviving him three sons and three daughters. His wife died on December 10, 1917.
On April 1, 1918, the decedent transferred to his sons 1,500 shares of the stock of the American Lady Corset Co., of which company he was at that time the president and principal stockholder. On April 15, 1918, the decedent transferred certain other securities to his children. The parties have stipulated as to the items so transferred and the value of each item. The respondent confessed error in including the stock of the American Lady Corset Co. and the other securities1930 BTA LEXIS 2345">*2347 above referred to in the decedent's gross estate for purposes of the estate tax.
On February 25, 1911, the decedent acquired by assignment a leasehold interest in certain property situated in Detroit, Mich. The original lease, which was for a term of 99 years, called for a net rental of $11,500 yearly for the term from August 1, 1905, to December 31, 1907, and a net rental of $12,500 per year from January 1, 1908, to December 31, 2004. The property was situated in the downtown business district of Detroit, and was a valuable business site.
At the time the decedent acquired his interest in this property, there was situated thereon a small building in a somewhat dilapidated condition. At some time prior to July 7, 1914, the decedent entered into an agreement by which he contracted to erect a new building on the property in question, and to lease the premises to 19 B.T.A. 683">*685 the S. S. Kresge Corporation. The building was erected pursuant to this agreement, and on July 7, 1914, the lease, for a term of 25 years terminating on November 14, 1939, was executed.
The lease to the S. S. Kresge Corporation provided for an annual net rental of $50,000 for the first 10 years, and of1930 BTA LEXIS 2345">*2348 $55,000 for the remaining 15. The sublessee was to pay all taxes and assessments against the property and also to keep it insured.
On May 21, 1918, the decedent entered into an agreement with the Jacob Siegel Corporation by which he assigned to it all of his interest in the 99-year lease, with the limitation which will appear below. The Jacob Siegel Corporation was formed, at or about the time of this assignment, for the purpose of taking the decedent's interest in the property. The sons and daughters of the decedent were the only stockholders of the Jocob Siegel Corporation, and they owned its stock in about equal proportions.
The agreement of May 21, 1918, in addition to providing for a cash payment of $12,000 to the decedent, contained the following:
To have and to hold said premises, with the appurtenances, for the balance of the term, computed from this date, as said term is given by said recorded indenture of lease, the said party of the second part yielding and paying, any law to the contrary notwithstanding, during the period of the natural life of the party of the first part, the sum of Twenty-five hundred Dollars ($2,500.00) on the first day of each month in advance, 1930 BTA LEXIS 2345">*2349 Provided, however, that the annual total of the payments herein provided to be paid by the party of the second part shall never amount to more than the net revenue, that is, the revenue remaining after paying the ground rent, taxes, insurance, and necessary repairs. And the said party of the second part does hereby covenant well and truly to pay or cause to be paid unto the party of the first part the amount of money above specified, and does now, for itself and for its successors and assigns, personally accept and assume all the terms, covenants, and agreements contained in the said recorded indenture or lease made the first day of August, 1905, as aforesaid, and will personally comply with them and be bound by them, and will keep and perform all the covenants and agreements in said recorded indenture or lease.
This instrument was signed by the decedent, and by Joseph Siegel and Eugene Siegel as president and secretary of the Jacob Siegel Corporation. Under it the decedent received during his lifetime approximately $150,000.
On January 25, 1922, the decedent entered into an agreement with his children, by which he relinquished his right to receive future payments provided1930 BTA LEXIS 2345">*2350 for in the transfer of May 21, 1918.
During his lifetime the chief business interest of the decedent was the American Lady Corset Co., which business was prosperous and successful. As each of his three sons reached the age at which the decedent felt that son should assume responsibility, he took him into the business. In a business sense the decedent was acute and 19 B.T.A. 683">*686 shrewd. After the transfer of the property in 1918, however, he lessened his business activity. He was intensely devoted to his family. His home and his children were his chief interests. He was very proud of his children, particularly of his sons on account of their business activities. He stated that he did not want them to await his death before receiving part of his estate, but rather desired to distribute it to them so that he could see them enjoy it and lend them advice in making investments.
The decedent was cheerful, jovial, and optimistic. He was moderate in his habits; had a good sense of humor, and enjoyed life. He never discussed the possibility of imminent death nor expressed any fear or apprehension of death in the near future.
The decedent was subject to attacks of asthma. He1930 BTA LEXIS 2345">*2351 was treated for this condition as early as 1912. He also had myocarditis, of which he was not aware, and arteriosclerosis, with resultant high blood pressure.
For some time prior to December 13, 1920, the decedent had been suffering from hemorrhoids. On that date a surgeon was called to make an examination of this condition. An operation was recommended and five days later it was performed. There was nothing in regard to the decedent's physical condition to cause any hesitancy to operate. The operation was successful and the decedent made a normal recovery therefrom.
The decedent gave no evidence of senility or any indication of mental incompetence. He was always mentally alert; kept informed of current events; and had an excellent memory.
The decedent's death was caused by bronchial pneumonia, which developed from a cold.
The respondent determined the value of the decedent's leasehold interest in the property in question at the date of his death to be $600,000, and this amount was included in his gross estate for the purposes of the estate tax under section 402(c) of the Revenue Act of 1921.
OPINION.
MURDOCK: Section 402(c) of the Revenue Act of 1921 provides1930 BTA LEXIS 2345">*2352 that there shall be included in the value of a decedent's gross estate, the value at the time of his death of all property -
To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by 19 B.T.A. 683">*687 the decedent within two 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 transfer of May 21, 1918, was made more than two years prior to the decedent's death, and the statutory presumption that it was made in contemplation of death does not apply. It has frequently been held that the language of the above quoted section relating to transfers made in contemplation of death, 1930 BTA LEXIS 2345">*2353 does not relate to the general expectation of death entertained by everyone, but, on the contrary, relates to the expectation of death in the immediate or reasonably near future. . On or about May 21, 1918, it appears that the petitioner had only a general expectation of death such as anyone, young or old, might have. It further appears that he had a good reason for making the transfer, which was that he was training his children in business, and as their ability warranted, he was turning over to them the management and control of parts of his property so that he could see how they would conduct themselves when additional responsibilities were placed upon them, and so that he could aid them in meeting such new responsibilities. The transfer was not made in contemplation of death within the meaning of the statute. The respondent does not contend to the contrary.
It is contended, however, that the transfer was intended to take effect in possession or enjoyment at or after the decedent's death, and that, therefore, its value at the time of the decedent's death should be included in his gross estate. 1930 BTA LEXIS 2345">*2354 If the transfer had been so intended, a constitutional question would be raised. See ; ; ; ; ; . Cf. . However, the transfer was not intended to take effect in possession or enjoyment at or after the decedent's death. It was absolute and effective at its date at which time the decedent completely and irrevocably divested himself of all title and interest which he had in the property. It is true that by the terms of the transfer he was to receive monthly payments of $2,500, but this provision did not constitute a reservation by the decedent of any interest in the property transferred. In in no way precluded the actual vesting of title to the property in the Jacob Siegel Corporation. 1930 BTA LEXIS 2345">*2355 ; ; .
19 B.T.A. 683">*688 Furthermore, the transaction in question was a bona fide sale for a fair consideration in money or money's worth within the meaning of the Revenue Act. Although by the transfer the decedent's annual income was decreased by $7,500, he received a cash payment of $12,000 and was relieved of the responsibilities, both as lessee under the original lease of August 1, 1905, and as lessor under the lease to the S. S. Kresge Corporation, incident to the continued ownership of the leasehold. The requirement of a fair consideration in money or money's worth was fulfilled. See , certiorari denied, ; ; ; and
In view of what has already been said, no discussion of the petitioner's contention in regard to the value of the property1930 BTA LEXIS 2345">*2356 at the date of the decedent's death is necessary.
Judgment will be entered for the petitioner under Rule 50.