Commissioner of Internal Revenue v. Nevin, 4501.

• Decision Date: 29 January 1931
• Docket Number: No. 4501.,4501.
• Citation: 47 F.2d 478
• Parties: COMMISSIONER OF INTERNAL REVENUE v. NEVIN.
• Court: U.S. Court of Appeals — Third Circuit

47 F.2d 478 (1931)

COMMISSIONER OF INTERNAL REVENUE v. NEVIN.^*

No. 4501.

Circuit Court of Appeals, Third Circuit.

January 29, 1931.

G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and Patrick J. Ryan, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Robert L. Williams, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for petitioner.

Maurice B. Saul, of Philadelphia, Pa., J. Marvin Haynes, of Washington, D. C., and Joseph A. Lamorelle, Ulric J. Mengert, and William E. Mikell, Jr., all of Philadelphia, Pa., for respondent.

Before BUFFINGTON and DAVIS, Circuit Judges, and THOMPSON, District Judge.

BUFFINGTON, Circuit Judge.

This case concerns the adjustment of taxes on the estate of John Wanamaker. He died December 12, 1922. On December 14, 1920, he made certain property transfers which the government contends were made in contemplation of death. Testimony was taken, and, on consideration had, the Commissioner determined that these transfers, of the value of $36,790,376.17, were made in contemplation of death. Thereupon the executors petitioned the Board of Tax Appeals for a redetermination, contending that the action of the Commissioner was wrong. As we have said, a vast amount of testimony was taken, and, after argument and full consideration, the Board filed an opinion and finding of facts and discussed in great detail the proofs, stated the law bearing on the statute in question, and found that "the various transfers of John Wanamaker, in December, 1920, were not made in contemplation of, or intended to take effect in possession or enjoyment at or after, his death." Several members of the Board joined in a dissent, in which there was no discussion of the law as laid down by the majority opinion or of the facts as found, the dissent simply stating: "I am of opinion that the Board has erroneously applied the law. The statute requires the petitioner to prove `to the contrary' of the presumption that the transfer was made in contemplation of death. C. D. Lehman, Executor, 6 B. T. A. 791. I do not think the Board has tested the evidence by the statutory method. If it had done so, I think it would be decided that the preponderance of the evidence did not overcome the statutory presumption."

Thereupon the Commissioner filed this petition to review the action of the Board. After full argument and due consideration had, we are satisfied the Board committed no error.

The pertinent statute (Revenue Act 1921, § 402(c), 42 Stat. 278) provides: "* * * Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title."

The opinion of the Board discussed at length the cases bearing on the question of the meaning of the words "in contemplation of death," beginning with the statement of Lord Mansfield, which presumably was in the mind of Congress when this act was passed, viz. "We all have in us the seeds of mortality. But `contemplation of death' is not the general knowledge of all men that they must dio at some time," cited a large number of state and federal decisions, and ended with an approval of what...