1941 BTA LEXIS 1470">*1470 Executors paid to the petitioner, as principal beneficiary under her husband's will, amounts within the income of the taxable year. Held, on the facts, that the payments are identified as made from income accumulated by the executors from earlier years and upon which the estate had paid income tax, and that the amounts received were improperly included by the Commissioner in the petitioner's income.
43 B.T.A. 645">*645 This proceeding involves income taxes for the calendar year 1934. All facts were stipulated, and by reference we find the facts to be as so stipulated. The stipulation reads as follows:
1. Petitioner is an individual and resides in Washington, D.C., and has a business address at 815 15th Street, NW., Washington, D.C. The income tax return for the period here involved, viz., the calendar year 1934, was filed with the Collector of Internal Revenue for the 23rd District of Pennsylvania.
43 B.T.A. 645">*646 2. The taxes in controversy are income taxes for the calendar year 1934, for which calendar year the Commissioner proposed an additional1941 BTA LEXIS 1470">*1471 assessment against petitioner in the amount of $39,767.45.
3. Harry Darlington, Jr., a resident of the Borough of Sewickley, Allegheny County, Pennsylvania, died January 25, 1931 leaving a last will and testament which was duly probated before the Register of Wills of Allegheny County and letters testamentary were granted to The Union Trust Company of Pittsburgh and to his wife, Ethel S. Darlington, now Ethel S. Garrett, who were named as executors in his will. A true and correct copy of the said will is attached hereto and marked Exhibit "a".
4. The estate of Harry Darlington, Jr., was in process of administration from January 25, 1931 until March 28, 1935, on which latter date, by decree of court dated March 18, 1935 and which became final on March 28, 1935, the residuary estate, principal and accumulated income, was awarded to the testamentary trustees.
5. On January 1, 1934 the said executors had in their hands accumulated income of the estate in the amount of $262,436.08 which had been received during the years 1932 and 1933. All of this income had been properly reported by the executors in their income tax returns for the respective years in which the income had1941 BTA LEXIS 1470">*1472 been received. None of it had been credited to any beneficiary prior to January 1, 1934.
6. During the year 1934 the executors made payments of income to the petitioner in the amount of $234,526.45, which payments were designated on the vouchers and on the books as income received in years prior to 1934. Eleven of these vouchers, for amounts totalling $110,000.00, were marked "payment on account of 1932 Income Collected." One voucher, in the amount of $124,526.45, was marked "Payment in full of Balance of Personalty Income for Year 1933." The following is a detailed list of the foregoing payments made to the petitioner in the year 1934.
[Here is set forth a list of vouchers, with numbers, dates and amounts, totalling $234,526.45; which list it is not considered necessary to set forth here in detail.]
7. The taxable net income of the estate of Harry Darlington, Jr., for the year 1934, before deducting amounts paid to beneficiaries, was $142,226.97. Of this amount $9,525.24 was distributed to Mrs. Cora I. Shields, one of the beneficiaries, leaving a balance of $132,701.73. In addition to the foregoing payments amounting to $234,526.45, the executors paid $60,000.00 to1941 BTA LEXIS 1470">*1473 petitioner on December 29, 1934 by a voucher which was marked "Payment on Account of Personalty Income for Year 1934."
8. Petitioner in her income tax return for the year 1934 accounted for that portion of the aforesaid payment of $60,000.00 which was subject to income tax but did not report the aforesaid payments totalling $234,526.45, referred to above.
9. Should it be held by the Board that distributions of income to beneficiaries by executors are necessarily to be considered as made from current net income to the extent that such income is available, regardless of the expressed designation of the executors that the payment is made from income received in prior years, it is stipulated and agreed that the executors had on hand sufficient current net income on the various dates in the year 1934, when payments of income were made to the petitioner, to have permitted the payment of income to the petitioner to the amount of $132,701.73 out of the net income received by the executors in the year 1934.
43 B.T.A. 645">*647 10. No orders or decrees of the court were entered with regard to payment of income in this estate until the final decree of distribution entered March 18, 1935. 1941 BTA LEXIS 1470">*1474 There is no provision in the will of the decedent requiring or authorizing the executors to pay income to the beneficiaries before the testamentary trust therein provided for is set up. Such trust was not set up until March 28, 1935.
11. The Union Trust Company of Pittsburgh, one of the said executors, kept the books and records for the estate. It maintained separate book accounts for income and principal. The income account shows in detail the items of income received in each year and the disbursements therefrom to the beneficiaries.
The will of Harry Darlington, Jr., referred to in paragraph three of the stipulation, after providing for specific legacies, recites:
All the rest, residue and remainder of my estate, I give, devise and bequeath unto my wife, Ethel Shields Darlington and The Union Trust Company of Pittsburgh, in trust, for the following uses and purposes: * * *
The purposes of the trust were, in sum, to hold, manage, invest, and reinvest and collect the income from the residue of the estate, during the life of testator's wife, to pay $10,000 per year to Cora I. Shields, the mother of testator's wife, and the remainder of the net income to testator's wife1941 BTA LEXIS 1470">*1475 during her life.
OPINION.
DISNEY: The petitioner was the principal beneficiary under the provisions of her husband's will. In years previous to the taxable year, the executors had accumulated from income and had on hand at the beginning of the taxable year, 1934, the sum of $262,436.08. During the taxable year the estate had income of $132,701.73 (in addition to an amount paid to another beneficiary not here involved). During the taxable year the executors paid petitioner $294,526.45. Thereof $60,000 was paid by voucher marked "Payment on Account of Personalty Income for Year 1934." Of the $60,000 the petitioner reported as income $57,284.47, the remainder not being reported because nontaxable. As to the $60,000 there is no controversy here. The respondent in the deficiency notice took the position that petitioner should have reported the entire $132,701.73, and increased income by $75,417.26, the difference between $57,284.47 and $132,701.73. In other words, the position was taken that the payments to petitioner in the taxable year were from the income of the estate for that year; whereas the petitioner contends that, except for the $60,000, the payments to her were from1941 BTA LEXIS 1470">*1476 the income of the estate for previous years, as to which the executors had reported and paid the income tax, and that therefore she is not taxable thereon for 1934.
Although there is some confusion in the briefs as to exactly what constitutes the issue presented to us, upon review of all that is said 43 B.T.A. 645">*648 thereon, we conclude that, as petitioner points out and agrees, the respondent correctly framed the issue in the following language:
The question recurs, were the payments made to the beneficiary in 1934 from income of the taxable year or prior years - not whether income was or was not paid or credited during the taxable year. It is stipulated that certain payments were in fact actually made during 1934, as hereinabove narrated - but from what source, is the question at issue.
What then is the source of the payments by the executors in 1934? Section 162(b) and (c) of the Revenue Act of 1934 1 is involved. We are not sure, from the briefs, whether the respondent contends for the application of section 162(b). At any rate, in our opinion, that subsection is not applicable here, for no provision of the will authorizes or requires that income "be distributed currently1941 BTA LEXIS 1470">*1477 by the fiduciary", in the language of that subsection, at least so far as the executors are concerned; and the trustees are not here involved, since they were not to receive the residue of the estate until the end of administration, and the trust was not set up until March 28, 1935, upon which date by final decree of the Probate Court the residuary estate was awarded to the testamentary trustees. We therefore need not consider the trust, but only the estate in the hands of the executors. Section 162(c) provides that in case of income received by estates of deceased persons during the period of administration, the estate in computing net income, may deduct the amount of the income for its taxable year which is properly paid or credited during such year to any legatee, heir, or beneficiary, but such amount shall be included in computation of the net income of the recipient. Was the petitioner such recipient of the income of the estate for the taxable year? In paying her, the executors attempted to identify the payments as from income of previous years, paying $110,000 by vouchers marked "Payment on account of 1932 Income Collected" 43 B.T.A. 645">*649 and $124,526.45 by a voucher marked1941 BTA LEXIS 1470">*1478 "Payment in full of Balance of Personalty Income for Year 1933." In , referring to a distribution to a beneficiary under section 162 of the Revenue Act of 1932, we said:
* * * The distribution of $22,500 appears to have been made out of trust income of earlier years and is not properly taxable at the time of actual distribution in 1933. * * *
As to another distribution, we held that nothing appeared requiring the exclusion thereof from the individual's income. It thus appears that the question is one of fact as to whether the disbursement is, or is not, from the income of earlier years, or of the taxable year. The respondent argues that the petitioner can not prove that the distribution was from pre-1934 estate income merely by so stating upon the vouchers paying same. The petitioner points out, however, that the evidence is not so limited, but that it is stipulated:
The Union Trust Company of Pittsburgh, one of the said executors, kept the books and records for the estate. It maintained separate book accounts for income and principal. The income account shows in detail the items of income received in each year and1941 BTA LEXIS 1470">*1479 the disbursements therefrom to the beneficiaries.
Therefore the petitioner contends there is identification of the distribution as from 1932 and 1933. We think this position should be sustained. Of course a mere notation on a voucher or check as to the source of payment is not sufficient proof of source of payment; but if other records bear out and supplement that notation, the proof may be sufficient. It is true that there was only one bank account in which all estate income was deposited, upon which all vouchers were drawn, and out of which all payments were made. Yet on the books kept for the estate there was careful segregation. Income was shown in account books separate from those showing principal. "The income account shows in detail the items of income received in each year and the disbursement therefrom to the beneficiaries." This stipulation can mean only that the books showed in detail the items of income received, separated by years, and that the "disbursements therefrom" also appear in detail, separated by years. In other words, there was a detailed record of the income, and net income, for each year. This showing, with supplementary reference to the year upon1941 BTA LEXIS 1470">*1480 the voucher paying the income, is sufficient identification of the source of payment, unless it is necessary to show complete separation of the income of the earlier years, into bank acounts separate from that of the taxable year and checks or vouchers upon such earlier bank accounts. We think that is not necessary. Account books are kept for purposes of information and identification. Kept in the current course of business, by the depositor, they indicate, by accounts separate as to subject matter (such as income) and year, identification and segregation 43 B.T.A. 645">*650 no less than would separate accounts upon a bank's books, or accounts in separate banks. Under the stipulation herein, the disbursement to the petitioner of the amounts here involved appear, in detail, and by years, upon the account books of the estate showing income in accordance with the notations on the vouchers. For them to appear elsewhere would obviously cause confusion in bookkeeping. We think such can not be presumed in the face of the stipulation. The petitioner, accepting and cashing such vouchers, could not successfully contend that she had received income from years other than those indicated by the1941 BTA LEXIS 1470">*1481 vouchers. In other words, the identification is binding upon her. We think it is likewise sufficient in her favor. We hold that the disbursements have been shown to be from pre-1934 income.
1941 BTA LEXIS 1470">*1482 The respondent suggests that the petitioner was entitled, under the will, to all of the income, and that the executors had no right to accumulate it. We understand this to mean, in effect, that since she received in 1934 an amount within the income of the estate for that year, and the executors had no right to accumulate income, she therefore received the estate income of 1934 and not of earlier years. We think such contention is not well founded. The executors were not required to pay the petitioner currently, or by years - either by the will or the law of Pennsylvania. Respondent on brief agrees that under such law presumably an executor can not be compelled to distribute assets during the settlement of the estate, within reasonable limits; but suggests that he can set up proper book entries, segregate specific funds, and take credit without actually paying out the money, from which we assume it is contended that the petitioner has a right to such credit, and if she actually receives payment, receives it from current income. In 1941 BTA LEXIS 1470">*1483 , it is held that, under section 162 of the Revenue Act of 1928, "credit" means allotment to the beneficiary beyond recall, and for practical purposes means payment. In our opinion the petitioner had no right to such credit prior to settlement of the estate by the court, and therefore the fact of payment does not on such ground, indicate payment from current income.
We conclude and hold that the petitioner has shown payment, above the $60,000, to have been from income of 1932 and 1933, and that respondent erred in including same in petitioner's income.
Decision will be entered under Rule 50.
Footnotes
1. SEC. 162. NET INCOME.
The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, escept that -
* * *
(b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries, and the amount of the income collected by a guardian of an infant which is to be held or distributed as the court may direct, but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not. Any amount allowed as a deduction under this paragraph shall not be allowed as a deduction under subsection (c) of this section in the same or any succeeding taxable year;
(c) In the case of income received by estates of deceased persons during the period of administration or settlement of the estate, and in the case of income which, in the discretion of the fiduciary, may be either distributed to the beneficiary or accumulated, there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary. ↩