Abely v. Comm'r of Internal Revenue (In re Estate of Abely)

• Court: U.S. Tax Court
• Writing for the Court: RAUM
• Citation: Abely v. Comm'r of Internal Revenue (In re Estate of Abely) , 60 T.C. 120 (T.C. 1973)
• Decision Date: 25 April 1973
• Docket Number: Docket No. 7765-71.
• Parties: ESTATE OF JOSEPH F. ABELY, DECEASED, WILLIAM F. ABELY, COEXECUTOR, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

60 T.C. 120

ESTATE OF JOSEPH F. ABELY, DECEASED, WILLIAM F. ABELY, COEXECUTOR, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 7765-71.

United States Tax Court

Filed April 25, 1973.

Donal O'Callaghan, for the petitioner.

Jack Raymond Selzer, for the respondent.

Held, since the right to a widow's allowance under Massachusetts law is contingent as of the date of the decedent's death, a lump-sum allowance awarded to a widow some 18 months after the decedent's death is a terminable interest and cannot qualify for marital deduction under sec. 1056, I.R.C. 1954. Estate of Michael G. Rudnick, 36 T.C. 1021, not followed, in the light of the subsequent decision of the Supreme Court in Jackson v. United States, 376 U.S. 503, 508, which fixed the date of decedent's death as the correct point of time from which to determine whether a widow's allowance is a terminable interest.

OPINION

RAUM, Judge:

The Commissioner determined a deficiency of $18,307.92 in the estate tax of the Estate of Joseph F. Abely. The only issue is whether a widow's allowance of $50,000 under Massachusetts law is a ‘terminable interest’ within the meaning of section 2056(b), I.R.C. 1954, and therefore does not qualify for the marital deduction.

Joseph F. Abely (decedent) died testate on March 29, 1969, a citizen of the United States and a resident of Massachusetts. His survivors included his widow, Nora Abely, and three sons. On March 11, 1970, one of the sons, William F. Abely, as coexecutor, filed the estate tax return in question. At the time the petition herein was filed William F. Abely's principal office was in Quincy, Mass.

In his will the decedent made specific bequests amounting to $54,000, consisting of bequests of $10,000 each to his wife and three sons, and $2,000 each to his grandchildren living at the time of his death, of which there were seven. The will further directed that the residue of his estate be placed in a testamentary trust, with his wife and three sons as trustees. Nora Abely was the income beneficiary of this trust, and she was given the right to withdraw any part of the corpus of the trust at the discretion of a majority of the trustees. Upon her death the trust was to terminate, and the remaining principal of the trust, along with any remaining undistributed income, was to be equally divided among decedent's three sons.

The estate tax return reported a total gross estate in the amount of $365,113.83, consisting of the following terms:

+----------------------------------+
                ¦Stocks and bonds      ¦$266,622.00¦
                +----------------------+-----------¦
                ¦Insurance             ¦61,346.77  ¦
                +----------------------+-----------¦
                ¦Jointly owned property¦37,145.06  ¦
                +----------------------+-----------¦
                ¦                      ¦           ¦
                +----------------------+-----------¦
                ¦                      ¦365,113.83 ¦
                +----------------------------------+
                

The return claimed deductions in the aggregate amount of $192,585.14, which included a $172,528.68 marital deduction, which in turn was based upon an unexplained figure of $311,057.37 identified as ‘Bequests, etc., to surviving spouse.’ The residuary estate, based upon the data reported in the return, was $192,565.54, computed as follows:

+----------------------------------------------------------+
                ¦Gross estate                       ¦          ¦$365,113.83¦
                +-----------------------------------+----------+-----------¦
                ¦Less:                              ¦          ¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦Specific bequests                  ¦$54,000.00¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦Insurance                          ¦61,346.77 ¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦Jointly owned property             ¦37,145.06 ¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦Funeral and administrative expenses¦17,911.02 ¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦Debts of decedent                  ¦2,145.44  ¦           ¦
                +-----------------------------------+----------+-----------¦
                ¦                                   ¦          ¦172,548.29 ¦
                +-----------------------------------+----------+-----------¦
                ¦                                   ¦          ¦192,565.54 ¦
                +----------------------------------------------------------+
                

On October 15, 1970, over 1 1/2 years after the death of Joseph F. Abely, Nora Abely petitioned the Probate Court of Norfolk County, Mass., for a widow's allowance for ‘necessaries for herself.’ On February 25, 1971, the court granted her petition and awarded her a widow's allowance of $50,000. The parties have stipulated that ‘The widow's allowance of $50,000 was included in the marital deduction claimed on the estate tax return.’

In his deficiency notice, the Commissioner disallowed $64,036.85 of the marital deduction of $172,528.66 claimed by the estate. This amount was disallowed ‘because the interest of the surviving spouse in property passing from the decedent did not exceed $108,491.83 as follows:

+---------------------------------------------------+
                ¦Transfer of jointly-owned property    ¦$37,145.06  ¦
                +--------------------------------------+------------¦
                ¦Insurance proceeds on life of decedent¦61,346.77   ¦
                +--------------------------------------+------------¦
                ¦Specific bequest (Article 6 of Will)  ¦10,000.00   ¦
                +--------------------------------------+------------¦
                ¦                                      ¦            ¦
                +--------------------------------------+------------¦
                ¦                                      ¦$108,491.83”¦
                +---------------------------------------------------+
                

Accordingly, the Commissioner allowed a marital deduction of only $108,491.83. He did not allow a marital deduction in any amount for the value of Mrs. Abely's interest in the testamentary trust, or for the $50,000 widow's allowance which she was granted. The Commissioner also increased the gross estate by $1,500, including therein the fair market value of the household furnishings of the decedent.

The only issue to be decided is whether the widow's allowance of $50,000 qualifies for the marital deduction under section 2056,¹ I.R.C. 1954, thereby increasing the amount of that deduction to $158,491.83. Petitioner makes no argument with respect to the other adjustments in the estate tax return made by the Commissioner in his deficiency notice.

Section 2056(a), I.R.C. 1954, provides for a deduction from the value of the gross estate of an amount equal to the value of any interest in property which passes, or has passed, from the decedent to the surviving spouse. There are, however, certain restrictions and limitations on this deduction. Thus, section 2056(b) provides that no deduction shall be allowed for a ‘terminable interest’ passing from the decedent to the surviving spouse. ‘In general, an interest is regarded as ‘terminable’ and is to be disqualified for deduction where at the time of decedent's death (1) it will terminate or fail on the lapse of time or on the occurrence or nonoccurrence of an event or contingency; (2) an interest in the same property passes or has passed from the decedent to someone other than the surviving spouse for less than an adequate and full consideration in money or money's worth; and (3) such other person will be able to possess or enjoy any part of such property upon the termination or failure of the surviving spouse's interest.' Estate of Virginia Loren Ray, 54 T.C. 1170, 1173. In our judgment the widow's allowance of $50,000 granted by the Massachusetts court is a ‘terminable interest’ within the meaning of these provisions.

The issue as to the point of time from which to determine whether a widow's allowance is a ‘terminable interest’ within the meaning of section 2056(b) was settled by the Supreme Court in Jackson v. United States, 376 U.S. 503. It is now firmly established that the date of death of the decedent is the correct time from which to make this determination. Jackson v. United States, 376 U.S. at 508; Allen v. United States, 359 F.2d 151, 154 (C.A. 2); Hamilton National Bank of Knoxville v. United States, 353 F.2d 930, 931 (C.A. 6); United States v. Edmondson, 331 F.2d 676, 677-678 (C.A. 5); Estate of Virginia Loren Ray, 54 T.C.at 1174. Moreover, in deciding whether a widow's allowance is terminable as of the date of death of the testator the State law under which the allowance was granted must be examined. ‘If under state law the right to receive the allowance terminates upon the occurrence of such contingencies as the death or remarriage of the widow, the widow's interest is terminable under Section 2056(a), (b)(1).’ Hamilton National Bank of Knoxville v. United States, 353 F.2d at 932; see Estate of Green v. United States, 441 F.2d 303 (C.A. 6); Iowa-Des Moines National Bank v. United States, 306 F.Supp. 320, 322 (S.D. Iowa); Estate of Edward A. Cunha, 30 T.C. 812, 815, affirmed 279 F.2d 292 (C.A. 9), certiorari denied 364 U.S. 942.

The Massachusetts ‘widow's allowance’ is provided for in Mass. Ann. Laws, ch. 196, sec. 2 (1969).² One characteristic of the Massachusetts allowance is that it is personal to the widow, and, unless a decree awarding it has become final before her death, the right to the allowance will not survive her. Adams v. Adams, 51 Mass.(10 Met.) 170. In Adams the probate judge granted an allowance to the widow, and the executor appealed. Before the appellate court could hear the case the widow died. In holding that her administrator could not claim the allowance, the court stated, ‘we are of opinion, that this provision is intended for the present relief of the widow, for the maintenance of herself and children; that it is temporary in its...