Estate of Rapp v. C.I.R.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Fletcher
• Citation: Estate of Rapp v. C.I.R., 140 F.3d 1211 (9th Cir. 1998)
• Decision Date: 18 March 1998
• Docket Number: No. 96-70742.,96-70742.
• Parties: ESTATE OF Bert B. RAPP, Deceased; Richard L. Rapp, Executor, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

140 F.3d 1211

ESTATE OF Bert B. RAPP, Deceased; Richard L. Rapp, Executor, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 96-70742.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 2, 1998.

Decided March 18, 1998.

Amended on Partial Grant of Rehearing May 15, 1998.

Gerald E. Lunn, Jr., Los Angeles, California, for petitioner-appellant.

Richard Farber, Washington, DC, for respondent-appellee.

Appeal from a Decision of the United States Tax Court; Laurance J. Whalen, Tax Court Judge, Presiding. T.C. No. 19107-92.

Before: FLETCHER, MAGILL,^* and T.G. NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

The executor of Mr. Bert Rapp's estate appeals the tax court's determination that a trust established by Mr. Rapp does not qualify as "qualified terminable interest property" (QTIP), as defined by 26 U.S.C. § 2056(b)(7). As such, the value of the trust may not be deducted when determining federal estate taxes owed.

We have jurisdiction, 26 U.S.C. § 7482, and we affirm.

I.

The testator, Mr. Bert Rapp, died in February 1988. He was survived by his wife, Laura Rapp, and two children, Richard and David Rapp. Mr. Rapp willed his one-half of the community property to a trust.¹ Richard is the executor of the estate under Mr. Rapp's will and trustee of the trust. All relevant parties are citizens of California.

The issue in this case is whether the trust created by Mr. Rapp's will constitutes a QTIP trust, qualifying it for the marital tax deduction. A QTIP is an exception to an exception. Generally, the value of property passed directly from a testator to a surviving spouse is deducted before computing federal estate taxes.² 26 U.S.C. § 2056(a). However, if the interest passing to the spouse consists only of a life estate or other terminable interest, the value of that interest is not deducted when determining the tax owed. 26 U.S.C. § 2056(b). If the terminable interest qualifies as a QTIP, however, the surviving spouse can elect the marital deduction as if the interest passed directly and without restraint to him or her. This is done by creating a trust under which property —

(I) passes from the decedent;

(II) in which the surviving spouse has a qualifying income interest for life, and,

(III) to which an election ... applies.

26 U.S.C. § 2056(b)(7)(B)(i). A surviving spouse has a "qualifying income interest for life" if:

(I) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, or has a usufruct interest for life in the property, and

(II) no person has a power to appoint any part of the property to any person other than the surviving spouse.

26 U.S.C. § 2056(b)(7)(B)(ii)

The will left by Mr. Rapp did not create a QTIP trust; however, the will as reformed by the California probate court did create a QTIP trust. The primary issue in this case is the effect to be given to the California probate court's reformation.

A.

In 1978, Laurence Clark, Mr. Rapp's attorney, prepared wills for both of the Rapps. Mr. Clark was not an estate attorney, but served as a consultant to Mr. Rapp in his business dealings. The 1978 wills were essentially identical to each other, and provided that household furnishings and other personal effects were to be given to the surviving spouse, and that all other property of the testator was to be held in trust during the life of the surviving spouse. The children were to be given the power as co-trustees to distribute such amounts from the principal and income of the trust as they determined necessary for the surviving spouse's health, education and support.³ Any decision to do so would be in their "absolute discretion." Upon the death of the surviving spouse, the trust was to cease and the remaining assets were to be distributed to the two children or their living issue.

In 1986, Mr. Clark prepared new wills. These wills revoked the 1978 wills but were substantially similar.⁴ Again, Mr. and Mrs. Rapp's wills were nearly identical to each other. The trust was to operate as previously described. Article Fifth (b) of Mr. Rapp's will stated:

If at any time, in the absolute discretion of the Trustee or co-Trustees, my wife, LAURA B. RAPP, should for any reason be in need of funds for her proper health, education and support, the Trustee may in his absolute discretion pay to or apply for the benefit of my wife, such amounts from the principal and income of the trust estate, up to the whole thereof, as the Trustee from time to time may deem necessary or advisable for her use and benefit.

B.

The 1986 will of Mr. Rapp was admitted to probate on May 5, 1988. Mrs. Rapp asked the probate court to modify her husband's will so that the trust created by the will would qualify for the marital deduction as a QTIP trust. Her petition to the probate court alleged:

it was decedent's intention that the Trust created ... for the benefit of Petitioner [i.e., Mrs. Rapp] during her lifetime was intended to qualify for the QTIP election and that decedent believed that the Trustees would pay all of the income from the Trust, at least annually, to or for the benefit of Petitioner during her lifetime.

She claimed that the trust was a "marital deduction gift" as defined by section 21520(b) of the California Probate Code.⁵ Her petition relied upon the probate court's power to modify or terminate a trust upon consent of all parties, Cal. Prob.Code § 15403, or its power to modify or terminate a trust due to changed circumstances, Cal. Prob.Code § 15409(a).⁶

Oral argument was held before the probate court. A guardian ad litem was appointed to represent Richard Rapp's two minor children. No witnesses were called and no documents were introduced into evidence. Richard Rapp did not contest his mother's petition. He did not ask Mr. Clark, creator of the wills, to testify, and Mr. Clark did not appear.⁷ The IRS did not receive notice of the hearing and did not appear. The guardian ad litem did not challenge Mrs. Rapp's petition.

The probate court granted Mrs. Rapp's petition. The court modified Article Fifth (b) to read:

During the lifetime of my wife, LAURA B. RAPP, the Trustee or co-Trustees shall pay the net income from the corpus of the trust annually or at more frequent intervals to or for the benefit of LAURA B. RAPP, during her lifetime.... Any income accrued or held undistributed at the time of my wife's death shall be distributed to her estate.

and added the following provision:

I authorize my executor to elect to treat the trust created under this Article FIFTH, or any portion thereof, as "qualified terminable interest property" in order to obtain the marital deduction for such property for federal estate tax purposes. Whether or not my executors make such an election, I hereby exonerate my executors from any liability resulting from making or failing to make such an election.

This order was entered October 31, 1988, and became final and unappealable as of April 30, 1989.

C.

Shortly after the probate court's order was entered, the executor filed with the Internal Revenue Service (IRS) an application for extension of time to file a federal estate tax return. The return normally is due 9 months after a testator's death. The executor noted in his application that he intended to make an election under § 2056 for QTIP exemption, but that he could not determine yet which portion of the estate was to be claimed as a QTIP deduction. He also sent a payment of $156,204 as an estimate of the taxes owed on the estate, but offered no explanation as to how he arrived at that figure.

In May 1989, after the probate court's reformation became final, the executor filed the final federal estate tax return. The executor elected to claim a marital QTIP deduction, but only with respect to as much of the estate as would reduce the total estate tax owed to $156,424, the amount that had been previously paid. Thus, the marital deduction claimed on the return totalled $3,683,899.38.⁸

The IRS sent a notice of deficiency to the executor stating that he had failed to substantiate fully the marital deduction claimed. The IRS allowed the deduction only to the extent of the property that passed directly to Mrs. Rapp under Mr. Rapp's will, consisting of the household furnishings and other personal property valued at $435,262.50. The executor appealed the decision and his claim was heard before the tax court.

After hearing argument, the tax court held that the probate court's reformation order was not binding absent an affirmation by the California Supreme Court. In the absence of an affirmation by the California Supreme Court, the tax court considered itself authorized to determine whether the probate court's order was in conformity with California law. After reviewing California law, the tax court concluded that the probate court had erred in reforming Mr. Rapp's will because the will was not ambiguous and there was little or no evidence that Mr. Rapp intended to create a QTIP trust. As such, the tax court held that, for federal estate tax purposes, the trust created by Mr. Rapp was not a QTIP trust, and that the claimed deficiency was correct.⁹

II.

We review decisions of the tax court on the same basis as we would a decision rendered by a district court in a bench trial. Condor Int'l, Inc. v. Commissioner of Internal Revenue, 78 F.3d 1355, 1358 (9th Cir.1996). A tax court's conclusions of law and construction of the Internal Revenue Code are reviewed de novo. Id. Its factual findings are reviewed for clear error. Id.

The taxpayer bears the burden of proving eligibility for the deduction claimed. Tax Ct. R. Prac. & P. 142(a); 26 U.S.C. foll. § 7453.

III.

The IRS argues, and the tax court agreed, that the probate court's reformation of Mr. Rapp's will is without binding effect for the purpose of determining federal estate taxes owed, unless California's highest court has affirmed the result. Both...