1928 BTA LEXIS 3338">*3338 The interest of the surviving wife in community property of the deceased husband and herself, both domiciled in California, is subject to the Federal estate tax imposed by the Revenue Act of 1921. Talcott v. United States, 23 Fed.(2d) 897, and Mary Brent, Executrix,6 B.T.A. 143">6 B.T.A. 143.
12 B.T.A. 1441">*1442 The Commissioner determined a deficiency in estate tax of $708,809.98. By stipulation, the deficiency which the Commissioner should have determined on his theory of the case and now in controversy is $604,789.87.
The issue is whether, under the laws of California, in determining the gross estate of a deceased husband for estate-tax purposes under the Revenue Act of 1921, there shall be included therein the whole of the community estate or only one-half thereof.
The facts are stipulated.
FINDINGS OF FACT.
William G. Henshaw, died March 2, 1924, leaving a last will and testament which was duly admitted to probate in the Superior Court of the State of California on March 20, 1924. Griffith Henshaw was on March 20, 1924, duly1928 BTA LEXIS 3338">*3339 appointed and ever since has been the duly qualified and acting executor of said last will, and the legal custodian of the estate of the decedent. The material portions of the will follow:
I hereby declare that all of the estate whereof I may die possessed is at the date of this will community property, having been acquired since my marriage with my beloved wife, Hetty T. Henshaw.
I will, devise and bequeath all of my estate of whatsoever kind and description and wheresoever situated, which is or may be subject to my testamentary disposition at the time of my death, unto my three children, namely, Alla Henshaw Chickering, Griffith Henshaw and Florence Henshaw Keeney, share and share alike.
I hereby nominate and appoint my son, GRIFFITH HENSHAW, as Executor of this my Last Will and Testament, giving and granting unto him full power to sell any and all of my estate at such times and in such manner as he may deem advisable, and hereby request and direct that no bond or bonds be required of said Executor either upon qualifying or in the administration of my estate.
May 20, 1886, William G. Henshaw and Hetty T. Henshaw were married in Oakland, Calif., and thereafter and until1928 BTA LEXIS 3338">*3340 the death of decedent they lived together as husband and wife. At all times during the existence of the marriage and marital community of William G. Henshaw and Hetty T. Henshaw, they, and each of them, were residents of the State of California and citizens of the United States. Henshaw left him surviving Hetty T. Henshaw, widow; Florence H. Keeney and Alla H. Tanner, daughters, and Griffith Henshaw, son.
During the lifetime of the decedent he transferred the property referred to and described in the notice of deficiency under the heading "Transfers, 2, 3, 5, 6, 7, 8, and 10," of the aggregate value at the 12 B.T.A. 1441">*1443 date of death of decedent of $520,100.56. These transfers were not made in contemplation of or intended to take effect in possession or enjoyment at or after the death, and none of such transfers are a part of the gross estate of the decedent or taxable under Title IV of the Revenue Act of 1921. The remainder of the transfers referred to and described in the notice of deficiency, and set out in the petition, viz, transfers of the aggregate value at the date of death of decedent of $1,844,890.85, are included in and are a part of the community property hereinafter1928 BTA LEXIS 3338">*3341 referred to.
During the existence of the marriage and marital community of William G. Henshaw prior to November 23, 1921, the marital community acquired otherwise than by gift, devise, bequest or descent, property which at the date of death of said decedent had an aggregate value, after the deduction of debts and claims against said decedent, funeral and administration expenses, of $5,334,898.46, and all of such property of the value of $5,334,898.46 was community property of the decedent and his wife under the laws of the State of California. This community property and the whole thereof was acquired by said marital community through the labor and industry of decedent and his wife, and through the investment and reinvestment thereof after being so acquired.
It is agreed that if it be finally adjudicated that only one-half of the aforesaid community property is subject to tax under Title IV of the Revenue Act of 1921, the net estate of decedent for purposes of said tax is $2,617,449.23; that the tax on the transfer thereof is $247,942.89, and the deficiency is $154,253.07; but if it should be finally adjudicated that all of the aforesaid community property is subject to tax1928 BTA LEXIS 3338">*3342 under Title IV of the Revenue Act of 1921, the net estate of decedent for purposes of said tax is $5,284,898.46; that the tax on the transfer thereof is $698,479.69, and the correct deficiency is $604,789.87.
OPINION.
LITTLETON: The error assigned with respect to the inclusion in the gross estate of certain transfers of property made by decedent during his lifetime has been eliminated by a stipulation to the effect that some of these transfers were properly included in the gross estate for estate-tax purposes and others should be excluded.
This leaves the question whether all or only one-half of the community property is subject to the Federal estate tax under the Revenue Act of 1921. The Federal District Court, Northern District of California, held in , that under the law of California, a wife has not such vested interest in 12 B.T.A. 1441">*1444 community property as to prevent its being subject, as an entirety, to estate tax on death of husband. The court said:
* * * , and 1928 BTA LEXIS 3338">*3343 , foreclose all arguments, supersede , and require the conclusion herein.
On appeal the judgment was affirmed by the Circuit Court of Appeals, Ninth Circuit, . The court reviewed the status of community property in California as interpreted by the California courts and in the course of the opinion said:
"* * * We are therefore clearly of the opinion that the amendments to the Civil Code adopted in 1917 did not operate to change such rule to the extent of creating in the wife a present vested interest in the property of the community during the continuance of the marriage relation." In brief, the status of the wife's interest in community property as defined in In re The Estate of Moffitt, remains the law of California and is unaffected by the fact that in 1917 by an act of the legislature the wife's estate on the death of her husband was relieved from the burden of the state inheritance tax. We see no escape from the conclusion that the interest of the surviving wife, as it is finally determined by the Supreme Court1928 BTA LEXIS 3338">*3344 of California, is of a nature that renders it subject to taxation under the plain terms of the Federal Revenue Act.
Writ of certiorari was denied by the Supreme Court on June 4, 1928. While the Talcott case arose under the Revenue Act of 1918, and this proceeding falls under the Revenue Act of 1921, the applicable provisions of the statute are identical under each Act.
In , the Board had before it the same question involved here in the case of a California decedent who died in 1923. In holding that the entire estate should be included for estate-tax purposes, the Board said:
It would seem from these decisions that upon the death of the husband the entire community estate should be included as a part of his gross estate as being "subject to the payment of the charges against his estate and the expenses of its administration and is subject to distribution as part of his estate." (Section 402, Revenue Act of 1921.) It also follows from these decisions that, as the wife takes her portion by succession and not by right of survivorship, there is a "transfer," within the meaning of section 402 of the Revenue Act of 1921, of1928 BTA LEXIS 3338">*3345 the part of the community estate which she takes and that such part is subject to the Federal estate tax.
The above decisions are controlling and decisive of the issue here involved, and, accordingly, it would serve no useful purpose to comment upon the various objections set forth in the brief filed by counsel for the estate. The Commissioner correctly held that the value of the entire estate was subject to tax.
Reviewed by the Board.
Judgment for $604,789.87 will be entered for the respondent.