(dissenting). Section 72.12, Stats., provides in relevant part:
A tax is imposed upon any transfer to any distributee in the following cases:
*136(6) (a) When property is held in the names of 2 or more persons with the right of survivorship but not as tenants in common. Upon the death of one joint tenant, the right of the surviving joint tenant or tenants to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under this subchapter at the property’s clear market value.
The question is whether the decedent, an apparent joint tenant, had acquired an interest in the real estate. If she in fact acquired no such interest, then no transfer occurred at her death and no tax is imposed.
The issue arises on a petition, pursuant to sec. 72.30 (4), Stats., for a redetermination of the inheritance tax. Section 72.30(3) (b) provides, “Where the department and any interested person are unable to agree on any issue necessary for the determination of tax under this sub-chapter, either may petition the circuit court to decide the issue.” Accordingly, the issue whether the decedent, Veronica Johnson, had acquired any interest in the properties was properly before the court on the petition for redetermination of inheritance tax.
The only evidence submitted by the state in support of its motion for summary judgment was the estate inventory submitted by William Johnson. That inventory included legal descriptions of the properties in question, including statements that, “ [r] ecord title is in Wm. A. Johnson and Veronica F. Johnson, his wife, an undivided Vá interest and Arliss J. Hill an undivided y% interest.”
In opposition to the state’s motion, William Johnson submitted an affidavit by Arliss J. Hill. In substance, Hill asserts that the properties belong to a partnership in which Hill and William Johnson are the only partners and that the grantor, William A. Johnson Co., Inc., on the deeds by which Veronica Johnson was named a grantee never intended to convey an interest to her. Intention is a question of fact which must be resolved by the trial court. *137Estate of Kohn, 43 Wis. 2d 520, 524, 168 N.W.2d 812, 814 (1969).
Whether decedent contributed to the acquisition of the properties is not dispositive. If the property was partnership property, William Johnson could have assigned his wife a joint interest as a gift. Estate of Schreiber, 68 Wis. 2d 135, 145, 227 N.W.2d 917, 922 (1975). How the tax law treats the question of contribution is not, however, dispositive of the question whether the decedent acquired an interest.
I am disturbed by the majority’s conclusion that the tax law forbids the court from looking behind apparent record title to determine the parties’ actual property interests. In People v. Fester, 356 P.2d 130, 132 (Colo. 1960), the Colorado Supreme Court rejected the tax commissioner’s argument that statutory language similar to that of sec. 72.12(6), Stats., created a conclusive or irrebutable presumption that title apparently passing to a joint tenant by survivorship was a taxable transfer. The Fester court said:
Such conclusion would not only be inequitable but would ignore the fact that property may be held in trust, and would raise serious doubts of the constitutional validity of that section of the act. It would result in imposing a tax upon a person who in fact received nothing to tax and would amount to taking his property without due process of law.
356 P.2d at 132.
Because William Johnson demonstrated that an issue of material fact exists, summary judgment was in appropriate. Sec. 802.08(2), Stats. The trial court therefore erred when it granted summary judgment to the department.