Being unable to agree with the opinion of the majority herein, I respectfully dissent, and briefly express my views.
The Federal Estate Tax Law provides that the estate tax imposed by the Revenue Act of 1926 “shall be credited with the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or Territory or the District of Columbia, or any possession of the United States, in respect of any property included in the gross estate.” This credit was limited to 80% of the tax imposed by the 1926 Act. Sec. 813, Title 26 U.S.C.A. Int.Rev. Code.
Since in Texas many estates, because of exemptions or otherwise, were not subject to the payment of inheritance taxes to this State, and other estates were not subject to the payment of such taxes equal to 80% of the Federal Estate Tax under the Revenue Act of 1926, our Legislature in 1933 passed an additional inheritance tax law to take advantage of the federal relinquishment of this 80%, being Art. 7144a, V.A.C.S.
Simply illustrated, this law operates in the following manner: If under the 1926 Revenue Act an estate tax. was due the Federal Government in the sum of $1,000, and no regular inheritance tax was due the State of Texas, then under Art. 714^ta there was levied against such estate a so-called additional inheritance tax of $800. Upon the payment of this amount to the State of Texas, the Federal Government would collect only $200 of the $1,000 estate tax due it. The taxpayer would 'be out only $1,000, but instead of paying the entire amount to the Federal Government, the State would receive $800 and the United States $200.
Art. 7144a also provides that if the estate be situated partly in this State and partly outside of this State, then the portion of the 80% credit to which Texas is entitled should be computed on the basis of the total amount of Federal taxes finally determined and assessed in proportion to the value of that part of the estate situated in Texas as compared with that portion of the value of the estate situated outside of the State of Texas.
It will be noted that the Federal statute does not provide for allocating the 80% credit, or relinquishment, among the various states or other political subdivisions when the estate is not all located in any one of them.
The purpose of Art. 7144a is to take advantage of the 80% credit allowed 'by the Federal Government. The holding , of the majority herein does not permit the State of Texas to take advantage of such law, but, on the other hand, permits advantage to be taken of the State of Texas. There is nothing in the Federal Act which indicates that any state is to be given a preference over some other state with respect to this 80% credit; nor is there anything in such statute, which would authorize the taxpayer to prefer one state or other political subdivision over another.
The majority opinion quotes Sec. 8 of Art. 7144a, and then uses this language: “Thus in Sec. 8, in addition to the language of Sec. 3, we have a repeated declaration that none of the provisions of said Act is to be construed and applied so that the combined taxes exacted by the Federal Government, plus those exacted by 'any State or Territory or the District of. Columbia, or any possession .of the United States,’ shall exceed the amount of the Federal tax levied under the 1926 Act.”
It is not believed that Sec. 8 is subject to such construction. It will be noted that this section provides that Secs. 1 to 7 shall always be construed so as not to increase the total amount of taxes payable to “the State and the Federal Government,” and continuing provides that the only purpose of the additional tax is to take full advantage of the 80% credit allowed “to those who have paid any estate, inheritance, legacy, or succession tax to any State or terri*708tory or to the District of Columbia * * This latter portion of Sec. 8 is used only as descriptive of the 80% credit allowed by the Federal Government, and is in no sense a limitation on the application of the Act, as the majority holds. If the Legislature had intended such construction, then it would have stated in the first part of Sec. 8 words to that effect, and would not have used the restrictive language that the Act shall be construed “so as not to increase the total amount of taxes payable to the State and the Federal Government.” In my opinion, Sec. 8 limits the amount of taxes to be considered as those due the Federal Government and the State of Texas, and this for the reason, as just stated, that only the State is mentioned in the first, and controlling, portion of said section.
The majority opinion in the above quotation also refers to Sec. 3 of Art 7144a. This section reads: “In the event the amount of inheritance and transfer taxes assessed against any certain estate under the inheritance tax laws of this State shall equal or exceed eighty (80) per cent of the estate or transfer taxes assessed and computed by the United States under the Revenue Act of 1926, against said estate or property belonging thereto and situated within the State of Texas, then no additional taxes' shall be collected hereunder, it being the purpose and intention of this Act to collect only a sufficient additional tax, when necessary, for the State to get the full benefit of the eighty (80) per cent credit to the States provided for by Section 301, Chapter 27 of the Federal Revenue Act of 1926.”
That this section does not take into consideration taxes due any other state or political subdivision is self-evident. This section also definitely refers to Texas as “the State” and to others as “the States.”
In North Carolina the State enacted a law assessing an additional inheritance tax equal to the full 80% of the credit allowed by the Federal Government, and this was held by the North Carolina Supreme Court to be in addition to any other regular inheritance tax. Hagood v. Doughton, 195 N.C. 811, 143 S.E. 841. So that if a person owned property in Texas and'North Carolina "at the time of his death, ¡Texas could never share in the 80% credit allowed to the various states, etc., for the reason that North Carolina by its law absorbed the entire 80%.
It would ill befit Texas to attempt the regulation of succession or inheritance taxes in other states, or to question the values which another state might put upon the estate of a decedent located within its borders, and she has not attempted to do so. Nor do I think that she has surrendered any of her rights to share in the tax refund granted by the Federal Government under the provisions of Art. 7144a. Certainly there »is no language in such Article to indicate that Texas has put herself at the mercy of a taxpayer or any other state. Just the contrary appears. She has asserted her intention to take full advantage of such 80% credit, and where the properties of the estate were located in two or more states she has adopted a reasonable and fair method of determining her portion of such 80% credit.
The taxpayer knew, or should have known, that under the Texas law there would be an inheritance tax due in proportion to the amount of the estate located in Texas, calculated under the provisions of Art. 7144a. The taxpayer should not be permitted to defeat this tax by taking credit on his Federal tax for more than Illinois’ just proportion of the 80% credit. The case of State v. Wiess, 141 Tex. 303, 171 S.W.2d 848, 147 A.L.R. 460, supports this view in principle. In that case it was held that the taxpayer and the Federal Government could not by compromising the amount of taxes due the Federal Government deprive the State of Texas of the additional inheritance tax levied by Art 7144a.
In this case it should not be held that a taxpayer and the States of Illinois and Indiana and the Federal Government could by a bookkeeping transaction between themselves deprive the State of Texas of its just proportion of the 80% Federal credit.
The judgment of the trial court should be affirmed.