dissenting. The narrow but perplexing issue in this case is whether federal income taxes payable by a surviving spouse upon a pension annuity should be taken into account in its valuation for New Jersey State Transfer Inheritance Tax purposes under N. J. 8. A. 54:34-1 et seq. The annuitant’s pension had been created under a deferred compensation program established by decedent’s employer and, because it was “qualified” under the federal internal revenue laws, the federal taxes ordinarily due on earned income were not required to be paid by decedent during his lifetime. Upon the death of decedent, however, those taxes became payable by the surviving widow by operation of the federal income tax law. I believe that it is correct and fair that they be included in the calculus for determining the “clear market value” of the annuity under N. J. 8. A. 54:34-5. Since the majority of the Court believes otherwise, I dissent from its opinion.
Expectedly, there are broad areas of agreement on my part with the majority. There is no doubt, for example, that an annuity or pension acquired by a decedent and made payable by him to another at or after his death is subject to the transfer inheritance tax, N. J. S. A. 54:34-l(c); N. J. A. G. 18:26-5.19; N. J. A. 0. 18:26-5.9; Cruthers v. Neeld, 14 N. J. 497, 503 (1954); Hagy v. Kelly, 135 N. J. Eq. 436 (Prerog. 1944); In re Langhaar, 125 N. J. Eq. 374 (Prerog. 1939). See also In re Kaegebehn, 16 N. J. Misc. 388 (Orph. 1938); In re Rothschild, 71 N. J. Eq. 210 (Prerog. 1906), aff’d o.b. 72 N. J. Eq. 425 (E. & A. 1907). The AT&T annuitant’s pension in this case conforms to the definition of an annuity. It encompasses an unconditional right to payment of a fixed sum of money at specific periodic intervals, *159Tobler v. Moncrief, 72 N. J. Super. 48, 51-52 (Ch. Div. 1962), to a designated recipient, Bryne v. Bryne, 123 N. J. Eq. 6, 14 (Ch. 1938), with payments terminating upon the death of the beneficiary. J. Appleman, Insurance § 81 at 105; see e. g., Cruthers v. Neeld, supra, 14 N. J. at 502-503 (a plan similar to the AT&T plan termed "annuity retirement contract”).
Moreover, as pointed out by the majority, the term "clear market value”, which is the measure of the Transfer Inheritance Tax under N. J. S. A. 54:34-5 is generally taken to mean "market value”, "fair market value” or "actual market value”. Typically, it calls for the hypothetical structuring of the proverbial willing buyer — willing seller sale. Ante at 144-145. But, as also pointed out by the Court, it is not always easy to fashion a market for certain kinds of assets. Id. at 144-145. Por that reason the determination of clear market value or market value, Tracy v. Alexander, 17 N. J. 397, 401 (1955); N. J. A. C. 18:26-l.l, must encompass and entail the objective assessment of all relevant factors bearing upon worth, Bassett v. Neeld, 23 N. J. 551, 557 (1957); see also Rosenthal v. Kingsley, 97 N. J. Super. 286, 289 (App. Div. 1967); Grell v. Kelly, 132 N. J. L. 450 (Sup. Ct. 1945).
Clear market value, as the measure of the Transfer Inheritance Tax, necessarily refers to the beneficial interest of what is actually received by the transferee, since it is that interest which is the subject of the transfer inheritance tax assessment. Bugbee v. Roebling, 94 N. J. L. 438, 440-442 (E. & A. 1920); In re Dellinger, 94 N. J. Eq. 409, 416 (Prerog. 1923); also, Hamlen v. Martin, 128 N. J. Eq. 383, 396-398 (Prerog. 1940); cf. In re Arkell, 103 N. J. Super. 266, 270 (App. Div. 1968). I do not agree with the Court, therefore, that the position of the executors, which focuses upon the beneficial interest of the survivor, departs from these basic principles of valuation by importing subjective and personal standards into the valuation process. To the contrary, the executors have sought nothing more than that the Transfer Inheritance Tax Bureau (Bureau) consider objectively the *160actual nature and all relevant characteristics of the asset and value it accordingly.
The Bureau argued in this case that a liability for federal income taxes, such as claimed by the Estate, could be "deducted” from the valuation of an annuity only if it fell within subsection (a) of the valuation statute, N. J. S. A. 54:34-5(a), that is, if the item was (1) a "debt of the decedent” and (2) was “owing at the time of death”. Since the federal income tax liability upon the survivor’s annuity was payable by the survivor and not the decedent, it could not, according to the Bureau, be considered a "debt of the decedent”. And, since the federal tax liability referred to taxes to be paid in the future, it could not be considered to have accrued prior to the “time of death”.
The executors assert that the statutory deductions under N. J. 8. A. 54:34-5(a)-(e) are separate from the basic valuation provision of the statute and are hot to be considered as valuational factors. Consequently, in seeking an allowance for the federal income taxes which will be payable by the beneficiary on the receipt of the annuity, the Estate was not attempting to take a statutory “deduction” from the clear market value of the annuity. Rather, it was claiming a "reduction” in the value of the pension annuity based upon a diminution intrinsic in the valuation of the asset itself.
Despite its arguments in this case, the Bureau has seemingly recognized that the enumerated statutory deductions are separate from valuation as such and are to be taken after the valuation of the asset. N. J. A. 0. 18:26-2.4. Before the National Association of Tax Administrators Conference, for example, the State Supervisor and the Chief Examiner for the Transfer Inheritance Tax Bureau stated:
In determining deductions from the estate for inheritance taxes the distinction between statutory deductions from the estate and *161reductions in the value of the transferred asset should be kept in mind.
[Maida & Mulholland, “Paper on N. J. Transfer Inheritance Tax”, [1973] GCE, Inheritance, Estate & Gift Tax Rep., (All-State New Matters) ¶ 20,729],
The Estate, therefore, is essentially correct in its analysis that factors in the nature of encumbrances, expenses or liabilities may be relevant in arriving at the clear market value of estate assets even though they are not included among the deductions specifically listed in N. J. 8. A. 54: 34 — ’5. An expense or liability which is incurred in the actual creation of an asset is such á factor; where an obligation is intrinsic in the origin of the property interest, it should be reflected in its valuation. Cf. Newberry v. Walsh, 20 N. J. 484 (1956).
Federal income taxes, in the context of this case, ought to be considered in ascertaining the clear market value of the annuitant’s pension. They are an expense or liability which arises with the actual creation of the pension itself. Cf. In re Estate of Rose, 465 Pa. 53, 348 A. 2d 113 (Sup. Ct. 1974); also, In re Tench, 23 Fiduc. Rep. 478 (Pa. Ct. C. P. 1973), CGH, Inheritance Estate & Gift Tax Rep. (New Matters) ¶20,736 (“The income tax obligation is implicit in the account receivable”); cf. Publicker v. Comm. of Internal Revenue, 206 F. 2d 250 (3 Cir. 1953), cert. den. 346 U. S. 924-925, 74 S. Ct. 312, 98 L. Ed. 418 (1954). The annuitant’s pension, furnished in exchange for continued, faithful employment, constituted deferred income earned by decedent. Cf. Russell v. Princeton Laboratories, Inc., 50 N. J. 30, 35 (1967). Federal income taxes were intrinsic in the earning of that income, even though payment therefor was deferred with the postponement of the receipt of the income. The tax liability inhered in the establishment of the pension as well as in its transfer to the beneficiary.
*162The Bureau itself recognizes the propriety of federal taxes in the valuation of property interests consisting of income or the right to receive income in certain contexts:
Federal income taxes paid on income in respect of a decedent operates as a reduction in the value of the assets giving rise to the federal income tax in order to determine the market value at the date of the death for New Jersey inheritance tax purposes.
[Maida & Mulholland, supra (1973) OGB, Inheritance B state & Gift Tace Rep. at 90,070].
Under a previous administrative regulation, 6 N. J. B. 35(b); 6 N. J. B. 124(c), the Bureau acknowledged the propriety of a reduction in the value of inherited property for federal income taxes attributable to “income in respect of a decedent”.1 “Income in respect of a decedent” under the Internal Eevenue Code, 26 U. 8. G. A. § 691, has been defined as those “* * * *163post-death payments [which] are, in fact, due to services performed by or economic activities of the decedent”. See Levin v. United States, 254 F. Supp. 640, 642 (D. Mass. 1966), vacated on other grounds, 373 F. 2d 434 (1 Cir. 1967) and cases cited therein. As such it is the “* * * activities and economic efforts of the decedent in his lifetime * * *” which are pertinent, Trust Co. of Georgia v. Ross, 392 F. 2d 694, 695 (5 Cir. 1967), cert. den. 393 U. S. 830, 89 S. Ct. 97, 21 L. Ed. 2d 101 (1968); and whether or not said payments were “* * * the fruits of a man’s professional activity during his lifetime * * Reiglemen’s Estate v. Commissioner of Internal Revenue, 253 F. 2d 315 (2 Cir. 1958). Moreover, it is not necessary that the decedent would have been entitled to the money had he lived in order for such payments commencing upon his death to be subject to treatment as income in respect of a decedent. Bernard v. United States, 215 F. Supp. 256, 260 (S. D. N. Y. 1963); see Estate of Nilssen v. United States, 322 F. Supp. 260 (D. Minn. 1971); see also Miller v. United States, 389 F. 2d 656 (5 Cir. 1967); contra Lascomble v. United States, 177 F. Supp. 373 (E. D. Va. 1959); see generally, Annot., “What Constitutes Income in Respect of A Decedent Within Meaning of § 691(a)(1) of Internal Revenue Code of 1954 (26 U. S. C. A. § 691(a) (1))”, 13 A. L. B. Fed. 613 ,(1972).
The annuitant’s pension in this case shares substantially the major definitional characteristics of “income in respect of a decedent”. This should dispose of the fears expressed in the majority opinion to the effect that income received by the beneficiary of a life estate, a remainder interest or other contingent and future interests is the equivalent of the income received under the annuitant’s pension in this case and, on that equation, the valuation of those kinds of income would have to be similarly reduced by the federal taxes payable by the recipients thereof. Ante at 151-152. That would not be so, because the income beneficiaries of conventional life and other future estates would not by definition be. the recipients of income previously earned and taxable. Hence, *164the concern of the Court that such income interests would be subject to reductions in value for transfer inheritance tax purposes is groundless.
'' There is, under the majority view, a distinct element of double taxation in failing to consider federal income taxes in the valuation of the pension annuity. The transfer inheritance tax based on the valuation standards endorsed by the majority would be computed on a portion of the beneficiary’s income which she could never have received because it was taxable upon its creation and was subject to taxes upon its transfer to her with the death of decedent. There is, moreover, no off-setting deduction of state inheritance taxes permitted for federal income tax purposes. Treas. Beg. sec. 1.64-2(c).2 It is generally held that, while double taxation is not unconstitutional, Illinois Cent. R.R. Co. v. Minnesota, 309 U. S. 157, 60 S. Ct. 419, 84 L. Ed. 670 (1940), a construction of law to authorize multiple taxation will not be adopted unless required by the express terms of the statute or by necessary implication. New Orleans v. Houston, 119 U. S. 265, 7 S. Ct. 198, 30 L. Ed. 411 (1887); Old Dominion Copper Mining & Smelting Co. v. State Board of Taxes & Assessments, 91 N. J. L. 173, 178-179 (E. & A. 1918); Jersey City Gaslight Co. v. Jersey City, 46 N. J. L. 194, 196 (E. & A. 1884); In re Estate of Boss, supra. “In this as in all other cases of statutory construction, we start with the fundamental assumption that the legislature means to be just. It needs no argument to prove the injustice of double taxation.” Bughee v. Roebling, supra, 94 N. J. L. at 439.
■ The court also has' expressed concern that the Estate’s position would entail speculation and conjecture in the *165valuation of the annuity. Ante at 154. To take into' account the federal taxes due on the pension annuity when transferred to the beneficiary is not to interject a speculative standard of valuation. Eather, it is a reflection of the actual complexity of the valuation process which is unavoidable if fairness and realism are to be achieved. The statute is geared to this. Eor example, it makes provision for the appraisal of property, N. J. S. A. 54:34-6, and for the determination of “fair market value” by appraisal, N. J. 8. A. 54:34-9, which encompasses all relevant circumstances bearing upon value. Bassett v. Neeld, supra, 23 N. J. at 557. An annuity as a future, terminable property interest is subject to special valuation procedures, N. J. 8. A. 54:34-1 through 7, including among other techniques the use of expectancy tables, N. J. 8. A. 54:34-2; N. J. A. G. 18:26-8. 22; In re Langhaar, supra. See also Tilney v. Kingsley, 43 N. J. 289 (1964); cf. In re Wallace’s Estate, 100 N. J. Super. 485 (App. Div. 1968), aff’d o.b. 53 N. J. 137 (1969); D. Beck, New Jersey Inheritance Taxes, § 44 (1974). Thus, the difficulty and uncertainty of dealing with the unknowable future are an inescapable aspect of the valuation of any future property interest. The lack of exactitude in predicting the precise amount of future income taxes does not of itself nullify their real impact upon the present worth of a taxable asset.3 Cf. R. H. Macy & Co., Inc. v. Director, Division of *166Taxation, 77 N. J. Super. 155 (App. Div. 1962), aff’d 41 N. J. 3 ,(1963); also Tenore v. Nu Car Carriers, 67 N. J. 466, 484-494 (1975). As stated in variant but pertinent settings, “[t]he difficulty, however, is not to be overcome by disregarding it.” Bassett v. Neeld, supra, 23 N. J. at 553. “With anything as sure as ‘death and taxes’, the courts are avoiding their responsibilities when they decline to make the best guess they can, once all the reasonably available evidence has been brought before them.” Tenore v. Nu Car Carriers, supra, 67 N. J. at 493 n. 26.
For these reasons, I would reverse the decision of the Appellate Division and allow the effect of federal income taxes to be recognized in the valuation process in determining clear market value of the annuitant’s pension.
Chief Justice Hughes and Justice Sullivan join in this opinion.
For affirmance — Justices Mountain, Pashman, Clifford and Schreiber — 4.
For reversal — Chief Justice Hughes and Justices Sullivan and Handler — 3.
The regulation was still in effect when the Estate filed its transfer inheritance tax return. It provided in pertinent part:
(d) Where * s' * a taxable transfer to a beneficiary subjects the * * * beneficiary to an income tax liability by reason of income at death which under the pre-1942 Internal Revenue Code required that there be included in the income of a decedent for the taxable period in which his death occurred all the income accrued up to the date of his death, * •* * allowance may be made for the income tax liability less the proportionate amount of the Federal estate tax, if any, in determining the value of the asset or transfer. * *■ However, income at death which is determined to be “Income In Respect Of A Decedent” merely because it is “attributable” to the decedent’s activities shall not be considered in the valuation of such an asset.
Since, by its terms, the deduction under the regulation could be taken only if under the pre-1942 Internal Revenue Code the decedent would have been required to include such income in his last tax return, and the survivor’s annuity here by definition would not have been so includable, the Bureau disallowed the Estate’s claim.
Notwithstanding the repeal of the regulation, this administrative rule is not irrelevant, as suggested by the majority, Ante at 142-143. The Bureau maintained in this appeal that its disallowance of the Estate’s claim, though now based on the statute, is entirely consistent with its former regulation.
It is aside the point and somewhat misleading for the majority to characterize the result as one favoring wealthy beneficiaries, Ante . at 153. In this case, for example, the beneficiary’s tax bracket for the balance of her life expectancy was quite low and the federal tax ascribable to the annuity during this period for valuation purposes was relatively modest. Post at 165, n. 3.
The Bureau and the Estate had no difficulty in grappling with these complexities in the valuation of the annuity in this case, taking into account future income taxes. In rounded figures, the federal income tax attributable to the pension for the year 1974 was $30,185; for 1975 the estimated tax, based upon a tax rate of 8.5% and factored at 5% for the deferred year, yielded a present value of the income tax of $3,810; for 1976 and subsequent years, utilizing, in addition to the 5% factor, an effective tax rate of approximately 20% and an annuity calculation based upon the recipient’s age of 66, the estimated annual income tax attributable to the pension was $9,615 and the present value of. the aggregated taxes was $62,436, bringing the total present value of such taxes to $96,430. This kind of calculation is not uncommon in the valuation of future and contingent interests under the Transfer Inheritance Tax Act.