Estate of Davenport v. Commissioner

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

September 20, 1999

TO: ALL RECIPIENTS OF THE OPINION

RE: 98-9005, Estate of Davenport v. CIR
Filed on July 13, 1999

The slip opinion cover page omitted Tax Court case number 23011-94. A copy
of the corrected cover page is attached.

Sincerely,
Patrick Fisher, Clerk of Court

By: Keith Nelson
Deputy Clerk

encl.
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 13 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
FOR THE TENTH CIRCUIT Clerk

ESTATE OF BIRNIE M.
DAVENPORT, Deceased, PATRICIA
L. VESTAL, Personal Representative,
Petitioner - Appellant,
v. No. 98-9005
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.

APPEAL FROM THE UNITED STATES TAX COURT
(T.C. Nos. 22900-94 & 23011-94)

Thomas G. Potts of James, Potts & Wulfers, Inc., Tulsa, Oklahoma, for
Petitioner-Appellant.

Laurie Snyder (Loretta C. Argrett, Assistant Attorney General, and Ann B.
Durney with her on the brief), Tax Division, Department of Justice, Washington,
D.C., for Respondent-Appellee.

__________________________

Before BALDOCK, McKAY, and BRORBY, Circuit Judges.

McKAY, Circuit Judge.
_________________________
 Petitioner-Appellant, the Estate of Birnie M. Davenport as represented by

Patricia L. Vestal, appeals from a decision of the United States Tax Court finding

the Estate liable for a federal gift tax deficiency in the amount of $822,653.00 and

a penalty in the amount of $205,663.00. This dispute involves a gift tax

deficiency notice for the third quarter of 1980 issued by the Commissioner of

Internal Revenue with respect to three alleged inter vivos gifts of stock in Hondo

Drilling Company, Inc. The Tax Court determined that, during the third quarter

of 1980, the decedent, Birnie M. Davenport, completed taxable gifts of a total of

1,610 shares of Hondo stock to her niece and two nephews—Ms. Vestal, Gordon

E. Davenport, and Charles E. Botefuhr. In this appeal, Petitioner argues that

Birnie did not complete inter vivos gifts of the stock during 1980 because, under

Oklahoma law, she did not have a sufficient ownership interest in the stock to do

so. Petitioner also claims that even if Birnie had an ownership interest in the

stock sufficient to effect inter vivos transfers of it, she did not complete the gifts

in the third quarter of 1980. That is, because Birnie neither gave the stock

certificates to her niece and nephews nor transferred title to the stock into their

names, she did not sufficiently deliver the stock to her niece and two nephews to

complete the alleged inter vivos gifts.

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 I.

Birnie M. Davenport and her sister, Elizabeth G. Davenport, shared a home

for most of their adult lives. In approximately 1954, Birnie and Elizabeth entered

into an oral agreement pursuant to which they shared and commingled their assets

and earnings. Under the agreement, Elizabeth held legal title to the sisters’

shared assets and earnings, but the sisters nonetheless considered their assets and

earnings to be jointly owned. The sisters also maintained joint checking and

savings accounts, and they shared equally in the construction and maintenance

costs associated with their home. Included in the sisters’ assets were 3,220 shares

of Hondo stock. The distribution of the Hondo stock called for in the sisters’

wills, which contained mirror provisions, was consistent with their joint

ownership agreement. In short, even though Birnie may not have held legal title

to the Hondo stock, her ownership of the stock was presumed in her will, which

provided for the distribution of 1,610 shares of the stock in equal parts to Ms.

Vestal, Mr. Davenport, and Mr. Botefuhr.

During the period of the oral agreement, Elizabeth and Birnie filed federal

and state income tax returns in which they reported their wage earnings

separately. However, the sisters reported one-half of their collective earnings,

losses, and deductions associated with their investments on Elizabeth’s returns

and one-half on Birnie’s returns. Corinne Childs, who prepared Elizabeth’s and

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Birnie’s tax returns beginning in 1965, believed that the sisters owned their assets

jointly and treated their assets in accordance with that belief in their tax returns.

Between 1965 and 1979, several of Birnie’s and Elizabeth’s federal income tax

returns were audited. In each case, the Internal Revenue Service accepted the

sisters’ explanation of their joint ownership arrangement and accepted the

reporting of fifty percent of their earnings, losses, and deductions on each sister’s

tax return.

Elizabeth died on December 2, 1979, and Ms. Vestal, Mr. Davenport, and

Mr. Botefuhr were appointed as coexecutors of Elizabeth’s estate. 1 Ultimately,

the executors filed federal and state estate tax returns which reported one-half of

the stock and bonds subject to the oral agreement in Elizabeth’s gross estate, even

though the assets were titled solely in Elizabeth’s name. Included in Elizabeth’s

gross estate were 1,610 shares of Hondo stock, valued at $804 per share.

Pursuant to the sisters’ oral agreement, the executors of Elizabeth’s estate

considered the remaining 1,610 shares of Hondo stock as belonging to Birnie.

After examining the federal estate tax return for Elizabeth’s estate, the IRS

issued a notice of deficiency. The IRS asserted that all of the assets held in

Elizabeth’s name should have been included in her gross estate, including the

3,220 shares of Hondo stock purportedly owned jointly by Birnie and Elizabeth.

1
Mr. Botefuhr resigned as a coexecutor in September 1980.

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It also claimed that the Hondo stock should have been valued at $3,019 per share.

Ms. Vestal and Mr. Davenport petitioned the Tax Court on behalf of Elizabeth’s

Estate, and the parties subsequently settled without a trial. Pursuant to the

settlement, the IRS conceded that the sisters owned their assets jointly and that

1,610 of the sisters’ 3,220 shares of Hondo stock would be included in

Elizabeth’s gross estate at a value of $2,400 per share. The Tax Court entered an

agreed decision in recognition of the settlement on May 24, 1984.

Meanwhile, on February 14, 1983, the District Court of Tulsa County,

Oklahoma, issued an order in response to a petition filed by Ms. Vestal and Mr.

Davenport requesting “instructions pertaining to the [i]nventory of certain real

and personal properties of [Elizabeth’s] [e]state.” Appellant’s App. at 187. The

court determined that although Elizabeth was the record owner of the sisters’ joint

assets, including the 3,220 shares of Hondo stock, she “owned only an undivided

fifty percent (50%) interest in said properties and held an undivided fifty percent

(50%) interest in said properties for Birnie.” Id. In accordance with this

determination, the court ordered the coexecutors of Elizabeth’s estate to assign

and convey record title to an undivided fifty percent of the subject property to

Birnie.

In 1980, Birnie decided to transfer what she believed to be her 1,610 shares

of Hondo stock to her niece and two nephews—Ms. Vestal, Mr. Davenport, and

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Mr. Botefuhr—in roughly equal portions. Consequently, Birnie entered into two

sales agreements dated July 2, 1980, with Ms. Vestal and Mr. Davenport, which

Birnie executed on September 26, 1980. Pursuant to the sales agreements, Birnie

sold 536 and 537 shares of Hondo stock to Ms. Vestal and Mr. Davenport,

respectively, at a discount price of $804 per share. 2 As consideration for the

stock, Ms. Vestal and Mr. Davenport agreed to pay $448,353.50 and $449,175.50,

respectively, in twenty annual installment payments commencing July 2, 1986. In

addition, Ms. Vestal and Mr. Davenport agreed to pay six percent interest

annually on the unpaid principal.

Under the sales agreements, Birnie represented and covenanted that she was

the sole owner of, and had the right to sell, the stock. She also purported to

convey good and marketable title to the shares of stock along with the right to

receive dividends paid on the stock after the date of the agreements. In addition,

Birnie represented that “simultaneously[] with the execution of this agreement,

[she] directed a written order to Hondo Drilling Company . . . to pay all such

dividends” to Ms. Vestal and Mr. Davenport. Id. at 161, 171. Apparently in

recognition of the fact that Birnie did not hold legal title to the stock, the sales

agreements also indicated that Birnie could not “effect the transfer” of the Hondo

2
The parties stipulated that the fair market value of the Hondo stock in the
third quarter of 1980 was $2,000 per share.

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stock until Elizabeth’s estate was settled. Id. at 162, 172. However, to expedite

the transfer, the agreements provided that “Seller has simultaneously, with the

execution of this agreement, delivered to the Buyer stock powers signed in blank

by Seller.” Id.

Pursuant to the sales agreements and the corresponding installment notes,

Ms. Vestal and Mr. Davenport each made down payments of $1,000. They also

made three interest payments to Birnie of around $13,500 per payment. On

March 5, 1982, however, Birnie forgave the indebtedness owed to her under the

installment notes. Birnie filed a federal gift tax return on March 31, 1983,

reflecting the forgiveness of the amounts due under the installment notes.

Rather than executing a sales agreement with Mr. Botefuhr, Birnie executed

a deed of gift purporting to transfer 537 shares of Hondo stock to him on July 7,

1980. The deed of gift was recorded in Tulsa County, Oklahoma, on the same

date. On November 28, 1980, Ms. Vestal, Mr. Davenport, and Mr. Botefuhr

executed an agreement pursuant to which Mr. Botefuhr agreed to file any required

gift tax returns and pay any gift taxes due with respect to the Hondo stock he

received from Birnie. Because of Mr. Botefuhr’s agreement to pay the gift taxes,

Ms. Childs testified that she did not think that Birnie was required to file a gift

tax return with respect to her transfer of 537 shares of Hondo stock to Mr.

Botefuhr. In spite of this agreement, Mr. Botefuhr never filed a gift tax return

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with respect to the Hondo stock, and he testified at trial that he did not think he

needed to do so until the Hondo stock “was determined to be Birnie’s.” Id. at

350.

After Elizabeth’s death but before July 1980, Birnie received dividend

payments on 1,610 shares of Hondo stock directly from Elizabeth’s estate. In

fact, Birnie reported $48,300 in Hondo dividends on her 1980 income tax return.

After July 1980, Ms. Vestal, Mr. Davenport, and Mr. Botefuhr each received

dividend payments on the shares of Hondo stock they received from Birnie.

Apparently because title to the stock was not transferred until April 14, 1981,

prior to that date the dividends were paid to Elizabeth’s estate and then

transferred directly to Ms. Vestal, Mr. Davenport, and Mr. Botefuhr. On

April 14, 1981, however, at the direction of Ms. Vestal and Mr. Davenport, the

record ownership of 1,610 shares of Hondo stock was transferred on the Hondo

stock ledger from Elizabeth’s name to the names of Ms. Vestal (536 shares), Mr.

Davenport (537 shares), and Mr. Botefuhr (537 shares). Dividends were paid

directly to those individuals after that date.

On July 15, 1981, Mr. Botefuhr redeemed his 537 shares of Hondo stock at

a price of $2,190 per share. He reported the capital gain he made by redeeming

the Hondo stock—which he described as “acquired by inheritance”—on his 1981

income tax return. He also reported the dividends he earned on the Hondo stock

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on his 1981 income tax return.

Birnie died on February 6, 1991. In preparing Birnie’s estate tax returns,

Ms. Childs discovered that no federal gift tax return had been filed with respect to

the 1980 Hondo stock transfer to Mr. Botefuhr. Ms. Childs therefore prepared a

gift tax return reflecting a gift of 537 shares of Hondo stock in the third quarter of

1980 from Birnie to Mr. Botefuhr. She filed the gift tax return along with

Birnie’s estate tax return on November 7, 1991. For purposes of the gift tax

return, Ms. Childs valued the Hondo stock at $804 per share and calculated the

tax due as $95,322.00. Although Ms. Vestal and Mr. Davenport signed the gift

and estate tax returns filed in connection with Birnie’s estate, Mr. Botefuhr

refused to sign either return.

The IRS mailed Petitioner a statutory notice of deficiency for estate and

gift taxes on September 20, 1994. The notice indicated a gift tax deficiency of

$1,422,154.00 and an addition to the tax in the amount of $355,538.50. See id. at

21. Petitioner responded by timely filing petitions to contest the deficiencies in

the Tax Court. Following a bench trial, the Tax Court found that Petitioner owed

a federal gift tax deficiency in the amount of $822,653 and a penalty of

$205,663. 1 At trial, Petitioner argued that Birnie’s and Elizabeth’s arrangement

1
Petitioner has not challenged the Tax Court’s determination that an
overpayment of federal estate tax in the amount of $144,030.00 was due to
Petitioner.

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regarding assets constituted a business partnership. As a result, Birnie forfeited

her interest in the assets of the partnership by failing to wind up the affairs of the

partnership upon its dissolution, i.e., upon Elizabeth’s death. According to the

Tax Court, the sisters did not enter into a business partnership with respect to

their assets. Instead, their arrangement “merely amounted to co-ownership,” R.,

Vol. 1, Doc. 25 at 21, and accordingly, the sisters “were merely co-owners of the

3,220 shares of Hondo stock.” Id. at 22. The Tax Court also determined that

Birnie made completed, taxable gifts to her niece and two nephews in July 1980.

Specifically, the court determined that under Oklahoma law, Birnie had sufficient

ownership rights in her half of the stock to effect a transfer and that she intended

to make a gift. See id. at 24. The court also noted that “the fact that delivery of

[the Hondo] stock certificates was delayed did not prevent the gift from being

complete in July of 1980. Birnie, through the use of the sales agreements and

deed of gift, accomplished sufficient delivery to put the gift beyond her dominion

and control.” Id. at 24 n.9. Additionally, the court held that the deficiency notice

mailed on September 20, 1994, was timely because the applicable statute of

limitations did not begin to run until Birnie’s estate filed the federal estate and

gift tax returns on November 7, 1991. See id. at 25. Petitioner timely filed a

notice of appeal, and we exercise jurisdiction pursuant to 26 U.S.C. § 7482.

We review de novo the Tax Court’s legal conclusion that Birnie effected

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inter vivos gifts of the Hondo stock to her niece and two nephews in the third

quarter of 1980. See Anderson v. Commissioner, 62 F.3d 1266, 1270 (10th Cir.

1995). We review the factual findings underlying the Tax Court’s conclusion for

clear error. See id.

II.

The federal gift tax is imposed on transfers of property by gift, see 26

U.S.C. § 2501(a)(1), and it is “a primary and personal liability of the donor, is an

excise upon his act of making the transfer, [and] is measured by the value of the

property passing from the donor.” 26 C.F.R. § 25.2511-2(a). The gift tax also

applies to transfers “for less than an adequate and full consideration in money or

money’s worth.” Id. § 2512(b). In such a case, the gift is “the amount by which

the value of the property exceed[s] the value of the consideration.” Id. In

analyzing the applicability of the gift tax to the transactions in question, we

examine the substance of the transactions, rather than their form. See Gregory v.

Helvering, 293 U.S. 465, 469-70 (1935); Heyen v. United States, 945 F.2d 359,

362 (10th Cir. 1991). Generally, “[t]he application of the tax is based on the

objective facts of the transfer and the circumstances under which it is made.” 26

C.F.R. § 25.2511-1(g)(1). Although donative intent “is not an essential element

in the application of the gift tax,” id., the presence of donative intent suggests

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that a gift has been made. See Heyen, 945 F.2d at 363.

“[T]he general and longstanding rule in federal tax cases [is] that although

state law creates legal interests and rights in property, federal law determines

whether and to what extent those interests will be taxed.” United States v. Irvine,

511 U.S. 224, 238 (1994); see also Autin v. Commissioner, 109 F.3d 231, 233

(5th Cir. 1997) (“No court considering federal taxation problems has challenged

the premise that state law determines the nature of the property right; federal

law’s task is to determine the appropriate tax treatment when such property rights

are transferred.”). However, in federal taxation cases, state law controls only to

the extent that certain statutory provisions of the federal revenue laws make their

application dependent on state law. See Irvine, 511 U.S. at 238-39 (citing United

States v. Pelzer, 312 U.S. 399, 402-03 (1941)); United States v. Wingfield, 822

F.2d 1466, 1473 (10th Cir. 1987). In this case, while federal law determines the

taxability of the interests and transactions at issue, we employ Oklahoma law in

analyzing the nature of Birnie’s ownership interest in the Hondo stock and in

determining whether she completed a gift of the stock to her niece and two

nephews during the third quarter of 1980. To constitute a valid inter vivos gift

under Oklahoma law, the donor must be competent to make a gift. See In re

Estate of Hoyle, 866 P.2d 451, 453 (Okla. Ct. App. 1993) (citing Davis v.

National Bank of Tulsa, 353 P.2d 482, 486 (Okla. 1960)); Frazier v. Oklahoma

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Gas & Elec. Co., 63 P.2d 11, 13 (Okla. 1936). In addition, there must be donative

intent, delivery of the gift, and the “donor must strip himself of all ownership and

dominion over the subject matter.” In re Estate of Rolater, 542 P.2d 219, 222

(Okla. Ct. App. 1975); see Stinchcomb v. Stinchcomb (In re Estate of

Stinchcomb), 674 P.2d 26, 30 (Okla. 1983).

Petitioner raises two primary arguments on appeal: (1) Birnie did not have

a sufficient ownership interest in the 1,610 shares of Hondo stock to complete

inter vivos gifts of the stock between July 1, 1980 and September 1, 1980; and

(2) even if Birnie was competent to effect inter vivos transfers of the stock, she

did not complete the gifts because she did not sufficiently deliver the 1,610 shares

of Hondo stock to her niece and two nephews during the third quarter of 1980. 2

2
Petitioner raises several additional arguments. First, Petitioner asserts that
the Tax Court’s jurisdiction over this dispute is contingent upon whether this
court upholds the Tax Court’s determination that a gift occurred within the
calendar quarter of July 1, 1980, to September 1, 1980. We agree. A valid
deficiency notice is a prerequisite to Tax Court jurisdiction. See Miles Prod. Co.
v. Commissioner, 987 F.2d 273, 275 (5th Cir. 1993); see also 26 U.S.C. § 6214(b)
(stating that, although the Tax Court may redetermine gift tax deficiencies for any
calendar year or quarter, it “shall have no jurisdiction to determine whether or not
the tax for any other year or calendar quarter has been overpaid or underpaid”);
Tax Ct. R. 13, 26 U.S.C. foll. § 7453 (“[T]he jurisdiction of the Court
depends . . . upon the issuance by the Commissioner of a notice of deficiency.”).
Further, “[i]t is well established that a deficiency notice is invalid if based upon
incorrect taxable periods.” Miles Prod., 987 F.2d at 276. It follows that the Tax
Court does not have jurisdiction if a deficiency notice sets forth an incorrect
taxable period. See id. (citing Columbia River Orchards, Inc. v. Commissioner,
15 T.C. 253, 260 (1950)); Sanderling, Inc. v. Commissioner, 571 F.2d 174, 176
(continued...)

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Petitioner does not appear to challenge the Tax Court’s determination that Birnie

and Elizabeth held their assets as co-owners nor does Petitioner appeal the

Court’s conclusion that the sisters did not form a business partnership.

A.

The thrust of Petitioner’s first argument is that, because Birnie did not have

legal title to the stock, she was not competent to give it away. Specifically,

2
(...continued)
(3rd Cir. 1978) (noting that Tax Court lacks “jurisdiction where the deficiency
notice does not cover a proper taxable period”); cf. Scar v. Commissioner, 814
F.2d 1363, 1370 (9th Cir. 1987) (“Failure to comply with statutory requirements
renders the deficiency notice null and void and leaves nothing on which Tax
Court jurisdiction can rest.”). A deficiency notice may be valid even if it contains
error “where the taxpayer has not been misled as to the proper year involved or
the amounts in controversy.” Sanderling, 571 F.2d at 176. In this case, the
deficiency notice indicates that taxable events took place in the calendar period
ending September 30, 1980. Because the taxable period is correct in light of the
result we reach here, we need not examine whether Petitioner was misled as to
year of the gift or the amount of the alleged deficiency to determine whether the
Tax Court may exercise jurisdiction.

Second, Petitioner states that the Commissioner unnecessarily and
unprofessionally “denigrat[ed]” and “vilifi[ed]” Ms. Vestal in the appellate brief
it submitted to this court. Appellant’s Reply Br. at 3. However, because we
believe the Commissioner’s brief is professional and merely asserts the IRS’s
legal position and because this issue is not dispositive on the merits, we do not
address it further.

Third, Petitioner argues that the Commissioner improperly raised the issue
of judicial estoppel before this court. Because we do not rely on judicial estoppel
in affirming the Tax Court’s decision, we also do not reach this issue.

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Petitioner argues that Birnie did not possess “legal title, possession, dominion,

and control of [the Hondo] stock before February 14, 1983,” Appellant’s Opening

Br. at 26, the date on which the Oklahoma state court determined that Birnie

owned a fifty percent interest in the Hondo stock. As a result, Birnie could not

have transferred the stock until after that date. Petitioner further argues that,

because the Hondo stock was in Elizabeth’s name during the relevant time period,

Elizabeth’s estate possessed dominion and control over the stock. Thus, only

Elizabeth’s estate could have transferred title to the stock during the relevant

period, which it did not do until April 14, 1981.

To complete a taxable gift, federal tax regulations require the donor to “so

part[] with dominion and control [over the gift] as to leave in him no power to

change its disposition.” 26 C.F.R. § 25.2511-2(b). While this requirement

implies that the donor must have some dominion and control with which to part,

neither the tax code nor the federal tax regulations shed further light on the type

of ownership interest necessary to effect a taxable inter vivos gift. We therefore

turn to Oklahoma law to analyze the sufficiency of Birnie’s interest in the Hondo

stock. In particular, we must examine whether Birnie’s lack of legal title to the

stock prevented her from effecting inter vivos transfers of the stock.

Initially, we note that the Oklahoma state court’s February 14, 1983

conclusion that Birnie owned fifty percent of the Hondo stock is not

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determinative of the taxation issues at stake in this case. First, we are not bound

by the Oklahoma court’s determination. See Commissioner v. Estate of Bosch,

387 U.S. 456, 457 (1967) (stating that where federal tax liability “turns upon the

character of a property interest held and transferred . . . under state law, federal

authorities are not bound by the determination made of such property interest by a

state trial court”). Second, while the Oklahoma court’s decision may have

declared or clarified the status of Birnie’s ownership interest for purposes of the

probate proceedings involving Elizabeth’s estate, the order did not create or alter

the status of Birnie’s ownership interest. That is, the court simply sanctioned an

ownership arrangement that was already in existence at the time—it did not vest

in Birnie anything she did not already own. With respect to these proceedings,

the date of the Oklahoma probate court’s determination is therefore irrelevant for

purposes of establishing the date on which Birnie acquired her ownership interest.

Because Petitioner does not appear to challenge the Tax Court’s

determination that Elizabeth and Birnie were co-owners of the Hondo stock, we

assume that the sisters were co-owners for all periods of time relevant to our

inquiry. Oklahoma law allows joint owners of property to alienate or otherwise

transfer their respective interests freely. See Starnes v. Miller, 505 P.2d 180, 182

(Okla. 1972) (stating that a cotenant may “‘dispose of his interest as he sees

proper. He may sell it or give it away; his cotenant not being concerned or

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interested in the consideration received’” (quoting Kerfoot v. Greenlee, 209 P.

444, 445 (Okla. 1922)); see also Gilles v. Norman Plumbing Supply Co. of Okla.

City, Inc., 549 P.2d 1351, 1353 (1975) (noting that each tenant in common

“would prima facie own an undivided interest in the [property] . . . and each could

sell, convey or dispose of only his interest without affecting the other tenant’s

interest”). In light of these standards, we do not think that co-ownership is

necessarily dependent on possessing legal title, and we agree with the Tax Court’s

conclusion that, as a co-owner of the stock, Birnie could dispose of her interest as

she saw fit.

Oklahoma law regarding stock ownership also supports our conclusion that

Birnie possessed a sufficient ownership in the Hondo stock for her to transfer it. 3

Under Oklahoma law, the fact that a person does not possess legal title to stock

does not prevent the person from owning it. The Oklahoma Supreme Court has

stated:

[I]t is quite possible, and often happens, for reasons of convenience
or otherwise, that stock held in the name of one person really belongs

3
Petitioner urges this court not to address the Commissioner’s argument
that Elizabeth was the nominee and Birnie was the beneficial owner of the Hondo
stock because it is raised for the first time on appeal. Regardless of whether our
review of this argument is so barred, we do not address this specific theory of
ownership because Oklahoma law regarding joint ownership and the general
standards governing stock ownership adequately support the Tax Court’s decision.

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 to another. In such a case the certificate, though prima facie
evidence of ownership in the person to whom it has been issued,
possesses no such magic or sacredness as to prevent an inquiry into
the facts.

Frazier, 63 P.2d at 14; accord Young v. Young, 393 S.E.2d 398, 400-01 (Va.

1990) (indicating that, although legal title as reflected in corporate records is

prima facie evidence of ownership, true ownership must be determined by

reference to the facts). In Frazier, plaintiffs’ parents purchased stock in the

names of their children but retained absolute dominion and control over the stock

and its proceeds. See Frazier, 63 P.2d at 15. Because the parents retained such

control, the Oklahoma Supreme Court concluded that the parents had not

completed an inter vivos gift of the stock to their children despite the fact that the

stock was registered in the children’s names. See id. As a result, even though the

parents never had legal title to the stock, the stock was deemed to have been at all

times owned by the parents. See id.; see also Davis, 353 P.2d at 488 (holding that

father never completed gift of stock despite transferring title into his children’s

names where he retained full dominion and control over the disposition and

proceeds of the stock).

Just as legal title was not determinative of ownership in Frazier and Davis,

in this case the fact that Elizabeth held legal title to the Hondo stock does not

mean that she was the sole beneficial owner of the stock. Along with the sisters’

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oral agreement to jointly own their assets and their subsequent commingling of all

of their assets and earnings, Birnie’s exercise of dominion and control over the

stock supports the conclusion that she owned the stock. For example, Birnie

contributed to the purchase of the stock. Birnie also purported to dispose of her

interest in the Hondo stock in her last will and testament. In addition, although

dividends may have been paid in Elizabeth’s name, Birnie reported half of the

earnings of the Hondo stock on her income tax returns. Further, on subsequent

audits of Birnie’s and Elizabeth’s tax returns, the IRS accepted this arrangement. 4

Finally, Birnie’s attempt to transfer her half of the Hondo stock to her niece and

two nephews is consistent with her exercise of dominion and control over the

stock.

In light of these considerations, we conclude that, in the third quarter of

1980, Birnie had a sufficient ownership interest in the Hondo stock to effect inter

vivos gifts of the stock to her niece and two nephews.

B.

As noted above, see supra Part I, the IRS contested the reporting of only
4

one-half of the sisters’ joint assets in Elizabeth’s probate tax return. However, as
part of the settlement with Elizabeth’s estate, the IRS ultimately conceded that
Birnie and Elizabeth jointly owned their assets.

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 Petitioner also argues that, because Birnie did not satisfy the delivery

element of an inter vivos gift, she did not complete the gifts to Ms. Vestal, Mr.

Davenport, and Mr. Botefuhr during the alleged calendar period. Specifically,

Petitioner claims that Birnie did not deliver the gifts because she neither gave the

Hondo stock certificates to her niece and two nephews nor transferred title to the

stock into their names during the third quarter of 1980.

Although Oklahoma law clearly includes delivery as an element of inter

vivos gifts, it also indicates that constructive or symbolic delivery—as opposed to

actual, physical delivery of the subject matter of the gift—may satisfy the delivery

requirement. See, e.g., Flesher v. Flesher, 258 P.2d 899, 905 (Okla. 1953)

(“‘Two essential requisites of a valid gift are the intent to give and the delivery of

the things given, either manually or symbolically.’” (citation omitted) (emphasis

added)); Fouts v. Nance, 155 P. 610, 613-14 (Okla. 1916) (stating that delivery

may be actual or constructive); cf. Kilgore v. Parrott, 168 P.2d 886, 889 (Okla.

1946) (stating that delivery of a deed of conveyance “does not require a particular

manual passage of the instrument from one to another but rather . . . anything

which clearly manifests the intention of the grantor that the deed shall presently

become operative and effectual”); Garrison v. Spencer, 160 P. 493, 494 (Okla.

1916) (holding that gift by deed conveying personal property was valid and that

“manual delivery of the personal property described in the deed was

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unnecessary”). Moreover, the cases suggest that symbolic or constructive

delivery is especially appropriate when the subject of the gift is “in the nature of a

chose in action” and therefore incapable of actual delivery. Green v. Comer, 141

P.2d 258, 262 (Okla. 1943) (stating that delivery element is met when donor does

“an act . . . sufficient to constitute a symbolic delivery of the interest which being

in the nature of a chose in action . . . is incapable of manual delivery”); see also

Stinchcomb, 674 P.2d at 30 (noting that when “gift is chose in action[,] . . .

delivery must be of a variety of which it is most capable”); Garrison, 160 P. at

494 (stating that “a gift of . . . choses in action, by deed, is complete and valid as

an executed gift by the deed alone and without an actual delivery of

the . . . security itself” (citation omitted)). Because the alleged gifts were gifts of

stock, and because stock qualifies as intangible property and therefore is “in the

nature of a chose in action,” see Globe Life & Accident Ins. Co. v. Oklahoma Tax

Comm’n, 913 P.2d 1322, 1326 (Okla. 1996) (“‘Intangible personal property’

encompasses property rights which–though represented by tangible objects (e.g.,

stock certificates, bonds, and notes)–are essentially incorporeal in that they have

limited intrinsic value and ultimately can only be claimed or enforced by a legal

action.”); see also id. at n.19 (“At common law intangible personal property falls

under the rubric of a chose in action”), symbolic or constructive delivery was an

appropriate means of fulfilling the delivery requirement.

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 Further, we think that Birnie’s execution and delivery of the deed of gift

and the sales agreements to Mr. Botefuhr, Ms. Vestal, and Mr. Davenport,

respectively, constituted a constructive delivery of the gifts. The deed of gift and

the sales agreements were legally binding and effectively transferred ownership of

the stock to her niece and nephews. See Lacy v. Commissioner, 341 F.2d 54, 57

(10th Cir. 1965) (holding that purchaser obtained beneficial ownership and

control of stock on date on which he entered into written agreement to purchase

the stock). This constructive delivery, which occurred within the taxable period,

was therefore sufficient to satisfy the delivery element.

Because Birnie satisfied the delivery requirement by executing the deed of

gift and the sales agreements, her failure to deliver the Hondo stock certificates

did not invalidate her gift. At first blush, federal tax regulations seem to suggest

that stock certificates must be given to the donee to meet the delivery element of

an inter vivos gift. The regulation states that “[i]f a donor delivers a properly

indorsed stock certificate to the donee . . . , the gift is completed . . . on the date

of delivery.” See 26 C.F.R. § 25.2511-2(h). However, we do not think this

provision means that a gift of stock can only be completed on the date of delivery

of the stock certificates. Nor do we think that the regulation prescribes the only

manner in which a gift of stock may be delivered; it merely provides that if

delivery is so accomplished, then the completion date is the date on which the

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certificates are transferred. Under this reading, Birnie’s failure to provide her

niece and nephews with the stock certificates during the third quarter of 1980 did

not prevent her from delivering the gifts in a different manner, e.g., by executing

and recording a deed of gift and entering into binding sales agreements.

We also do not think that Birnie’s failure to transfer title to the Hondo

stock into the names of Ms. Vestal, Mr. Davenport, and Mr. Botefuhr prevented

her from completing the gifts. Some courts have indicated that transfer of present

legal title is required to complete a gift for federal tax purposes. See, e.g.,

Goldstein v. Commissioner, 89 T.C. 535, 542 (1987) (noting that transfer of legal

title is required for completion of inter vivos gift); Heyen, 945 F.2d at 362

(indicating that gift of stock is complete when stock is transferred into donee’s

name on corporation’s books); Stjernholm v. Commissioner, 933 F.2d 1019, 1991

WL 88498, at **1 (10th Cir. 1991) (Table) (remarking that “there can be no gift

under federal tax law unless the taxpayer irrevocably transfers present legal

title”). However, not only is the requirement of a transfer of legal title

inconsistent with the mandate that we examine the substance of a transaction

rather than its form, see Gregory, 293 U.S. at 469-70; Heyen, 945 F.2d at 362, but

also Goldstein, Heyen, and Stjernholm are distinguishable from this case. Neither

Goldstein nor Heyen actually applies the requirement of a transfer of legal title;

they simply cite the requirement in the course of a discussion of the general

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requirements for completion of an inter vivos gift. The third case, Stjernholm, is

an unpublished opinion applying a specific provision of Colorado law involving

the transfer of title to a motor vehicle. See Stjernholm, 1991 WL 88498, at **1

(stating that “under Colorado law, failure to transfer legal title, particularly in the

case of a motor vehicle, demonstrates a lack of donative intent”). Moreover, no

Oklahoma case lists transfer of legal title as an element of an inter vivos gift.

See, e.g., Sacred Heart Parish v. Giacomo (In re Estate of Carano), 868 P.2d 699,

703 n.5 (Okla. 1994) (listing elements of inter vivos gift as donative intent,

complete delivery of the thing given, and acceptance by the donee); Stinchcomb,

674 P.2d at 30 (stating that “[t]o constitute a valid intervivos gift, there must be

donative intent . . . ; actual delivery of the subject matter of the gift . . . ; and

[the] donor [must] strip himself of all ownership and dominion over [the] subject-

matter of [the] gift.”); Frazier, 63 P.2d at 13 (listing ten elements of inter vivos

gift).

Finally, the Tax Court has held that delivery of stock may be accomplished

without transferring the title of the stock, so long as the donor definitively

relinquishes dominion and control over the stock and no longer retains the power

to revoke the gift. See Richardson v. Commissioner, 49 T.C.M. (CCH) 67, 1984

WL 15230 (1984). In Richardson, the beneficial owner of stock held under a

living trust wrote a letter instructing the trust company to withdraw the stock from

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the trust and deliver it to a bank. On the same day, the owner also wrote a letter

instructing the bank to distribute the stock to eight different charities.

Subsequently, before title to the stock was transferred into the donees’ names, the

bank tendered the stock on behalf of the donees to a company seeking to purchase

the issuer of the stock. Because the donor could no longer revoke the gifts, the

court held that the delivery was complete on the date of tender, even though title

had not yet been transferred on the corporate books. Similarly in this case,

Birnie’s failure to transfer the stock into the donees’ names did not prevent her

from completing the gifts in the third quarter of 1980 because she constructively

delivered the stock, and, as discussed below, by executing the deed of gift and the

sales agreements, she placed the stock beyond her control so that she could no

longer revoke the gifts. In summary, we do not believe that, under either

Oklahoma law or federal tax law, transfer of legal title is always essential to the

delivery of a gift of stock.

Even if Birnie had not fulfilled the delivery requirement, she met the other,

arguably more important, requirements of making inter vivos gifts—donative

intent and a relinquishment of dominion and control over the subject matter of the

gift. Birnie’s intent to convey the Hondo stock to the alleged donees is

undisputed and clearly manifested in the sales agreements and the deed of gift.

Accordingly, a reasonable fact finder could conclude that, even though she had

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not manually delivered the stock certificates or transferred the stock into the

donees’ names, she had completed the gifts. See Rolater, 542 P.2d at 219 (stating

that “neither manual delivery of a certificate nor registering of a transfer on the

corporate books is controlling [on the issue of delivery of corporate stock for

purposes of an inter vivos gift] absent facts or circumstances demonstrating the

first essential—donative intent of the . . . owner” and holding that transferring

stock certificates into donees’ names did not complete gift where record did not

support a finding of donative intent); cf. Kilgore, 168 P.2d at 889 (stating that

“the real test [for delivery of a deed of conveyance] is the intention of the grantor,

which intention may be manifested by mere acts and words or both combined”).

Birnie also surrendered control over her half of the Hondo stock during the

third quarter of 1980. Under federal tax law, the critical determinant of the

completion of a gift is whether the donor has “so parted with dominion and

control as to leave in him no power to change [the gift’s] disposition.” 26 C.F.R.

§ 25.2511-2(b). Likewise, Oklahoma law requires the donor to surrender

dominion and control over the subject matter of the gift. See Frazier, 63 P.2d at

13. Both the deed of gift and the sale agreements indicate that Birnie surrendered

dominion and control over the Hondo stock. Birnie executed the deed of gift in

favor of Mr. Botefuhr and simultaneously recorded it in the county recorder’s

office. The deed declares that “I, Birnie M. Davenport . . . have given, granted,

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and conveyed, and by those present[] give, grant, and convey unto . . . Edward

Botefuhr, . . . five hundred thirty seven (537) shares of Hondo Drilling Company

capital stock . . . . [t]o have and to hold the said property to him, . . . his heirs and

assigns forever.” Appellee’s Supp. App. at 15. The sales agreements also show

that Birnie divested herself of control over the Hondo stock she gave to Ms.

Vestal and Mr. Davenport. For example, the agreements indicate that, as of the

date of the agreement, Birnie directed Hondo in writing to begin paying all

dividends on the stock to Ms. Vestal and Mr. Davenport, see Appellant’s App. at

161, 171, and that “simultaneously[] with the execution of th[ese] agreement[s],

[Birnie] delivered to the [donees] stock powers signed in blank.” Id. at 162, 172.

The sales agreements further provide that Birnie directed her attorney, Ms.

Childs, “to perform any and all acts necessary and proper to” effectuate the

transfer of the stock on the books of Hondo into the names of the donees. Id. at

163, 173. In addition, Birnie surrendered her voting rights in the stock to Ms.

Vestal and Mr. Davenport, and, in recognition of the fact that new certificates

might not immediately be delivered to the buyers, Birnie agreed “to an irrevocable

proxy covering all such shares running in favor of the Buyer[s].” Id. By

executing and recording a deed of gift and entering into binding sales agreements,

Birnie placed the stock beyond her control. She could not revoke the transfers.

Cf. Courtney v. First Nat’l Bank, Coalgate, 569 P.2d 458, 460 (Okla. 1977)

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(holding that gift of two certificates of deposit was incomplete because decedent

could have revoked the purported gift by changing the payee, cashing the

certificates, or pledging them as collateral).

A legally enforceable promise to give is subject to gift tax at
the time the promise is made, not when the property is actually
transferred. This principle is premised upon the notion that once the
donor has relinquished legal control of the property, any factual
control he might exert is in derogation of the donee’s rights as
legally vested under state law.

Autin, 109 F.3d at 235.

Not only do the deed of gift and the sales agreements demonstrate that

Birnie surrendered her control over the Hondo stock but also, after executing the

documents, she did not in fact exercise any control over the stock. The record

shows that after July 1980 Birnie did not receive any Hondo stock dividends.

Instead, the dividends were distributed from Elizabeth’s estate directly to Ms.

Vestal, Mr. Davenport, and Mr. Botefuhr. In addition, the November 1980

agreement entered into by Ms. Vestal, Mr. Davenport, and Mr. Botefuhr, in which

Mr. Botefuhr agreed to file and pay any gift taxes due for the stock he received as

a gift from Birnie, demonstrates that they believed a gift had occurred in the third

quarter of 1980 and renders their argument that no gift occurred until 1984

disingenuous. The fact that Mr. Botefuhr redeemed his 537 shares of Hondo

stock before February 14, 1983, the date on which the Oklahoma probate court

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determined that Birnie and Elizabeth jointly owned the Hondo stock, further

indicates that Birnie previously had surrendered her control. By relinquishing

control over the Hondo stock during the third quarter of 1980, Birnie completed

the inter vivos gifts to her niece and nephews.

III.

We conclude that Birnie had a sufficient ownership interest in the Hondo

stock such that she was competent to effect inter vivos transfers of the stock to

Ms. Vestal, Mr. Davenport, and Mr. Botefuhr. We also hold that Birnie

completed the gifts during the third quarter of 1980 because she constructively

delivered the stock to her niece and two nephews, possessed an undisputed intent

to give, and relinquished dominion and control over the subject matter of the

gifts. Accordingly, the Tax Court’s decision is AFFIRMED.

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