Hardwick v. Department of Revenue
| Decision Date | 15 May 1975 |
| Citation | 535 P.2d 89,75 Or.Adv.Sh. 1788,272 Or. 100 |
| Parties | Mary A. HARDWICK, Executrix of the Estate of Clifford E. Hardwick, Deceased, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. |
| Court | Oregon Supreme Court |
David A. Kekel of Duffy, Stout, Georgeson & Dahl, Portland, argued the cause and filed briefs for appellant.
Ted E. Barbera, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty Gen., and Theodore W. de Looze, Chief Tax Counsel, Salem.
This is a taxpayer's appeal from a decree of the Oregon Tax Court, 1 affirming an order by defendant Department of Revenue which assessed a deficiency in the payment of an inheritance tax payable by plaintiff. The question raised is the applicability of the Oregon inheritance tax statutes where there is a severance of a joint tenancy prior to the death of the joint tenant who furnished the original consideration for the property.
The facts are not disputed. Plaintiff is the widow of Clifford E. Hardwick, who died on July 24, 1971. From the year 1949 through 1970 decedent purchased shares of stock in various mutual funds. The shares were registered in the names of decedent and plaintiff as joint tenants with the right of survivorship. Decedent furnished the entire consideration for the purchases. No gift taxes were paid or gift tax returns filed at the time of the purchases. Just prior to his death, decedent and plaintiff re-registered the stock, approximately one-half in the sole name of each. After decedent's death plaintiff, as personal representative of the estate, filed Oregon gift tax returns on behalf of the decedent reporting that gifts had been made to plaintiff at the time the shares were purchased by decedent. Plaintiff tendered payment of the gift tax together with penalty and interest to defendant. Federal gift tax returns and payments have also been made.
The purpose of the re-registration was to avoid taxation of the entire value of the mutual funds mandated by ORS 118.010(2)(a) 2 which provides that the survivorship of a surviving joint tenant is deemed a taxable transfer of the entire value of the jointly held property, less the portion of its value attributable to the consideration furnished by the survivor. Plaintiff contends that the statute is inapplicable to the shares re-registered in her name because after severance they were not held jointly at the death of decedent and she, therefore, did not take by survivorship.
Defendant, Department of Revenue, held that the transfer of interests purported to be made by the re-registration was ineffective since it constituted a transfer of property made in contemplation of death without adequate consideration. Plaintiff appealed from defendant's order 3 to the Tax Court, which affirmed.
The effect of a transfer of property out of joint ownership in contemplation of death is one of first impression in Oregon. However, it has been resolved in favor of the taxpayer by the federal courts in construing substantially identical federal legislation. 4 The position of the federal courts has been that the creation of the joint tenancy by one joint tenant involves a transfer of valuable rights to the noncontributing tenant, which transfer constitutes a taxable incident under the gift tax. Subsequent division and transfer of the property from joint ownership to the separate ownership similarly involves an exchange of valuable rights. Therefore, to the extent that the surviving former joint tenant relinquished rights in the property passing to the co-owner of a value at least equal to the value of the additional rights received in the property in which the sole ownership was received, the exchange is for valuable consideration and not subject to the statutory provisions invalidating, for tax purposes, transfers in contemplation of death. 5
The interpretation of federal tax provisions is ordinarily persuasive of the proper interpretation of Oregon provisions copied from them. 6 This is so because it can be assumed with some assurance that ordinarily the legislature, in borrowing federal provisions, intends economic transactions to have similar tax consequences under both federal and state law. Defendant argues that the federal result should be rejected in this instance because it does not accord with the over-all legislative scheme embodied in the Oregon inheritance and gift tax enactments.
The 'scheme' which defendant seeks to effect is to allow a contributing joint tenant to elect whether to subject himself to gift taxation by filing gift tax returns at the time of creation of the joint tenancy, or to subject his survivor to inheritance tax upon his death through operation of ORS 118.010(2) (a) by failing to file such a return. This approach, defendant argues, is justified on the ground that as a matter of economic reality a non-contributing joint tenant has no beneficial interest in jointly held property until death of the contributing tenant.
The problem with defendant's approach is that it has no statutory basis and rests upon an inaccurate view of the rights of joint tenants. Under Oregon property law, 'joint tenants' each have concurrent life estates with indestructible contingent remainders. 7 The beneficial interest of a joint tenant who furnishes nothing for the purchase of the property is precisely the same as that of his co-owner who furnishes all of the consideration for the purchase of jointly held property. Each have valuable present rights of ownership. Defendant's argument that this theory of property ownership does not comport with economic reality ignores the fact that a joint tenant, whether he provides the consideration or not has a measurable economic interest in the jointly held property. This reality is not changed by the legislative declaration in ORS 118.010(2)(a) that the event of surviving is an appropriate time for the collection of an inheritance tax assessed on the portion of the total value of the property not attributable to the survivor's contribution.
Defendant's position that nothing passes until the death of the joint tenant who furnishes the consideration for the purchase of the jointly held property is not consistent with its position that the original transfer to the joint tenant creates a taxable transfer under the gift tax if the taxpayer elects to so treat it at the time of making the gift. There is no support for defendant's position that a gift is deemed to have been intended only if the contributing joint tenant makes a declaration to that effect at the time of the transfer. 8
The creation of the joint tenancy without adequate consideration constitutes a gift regardless of the subjective intent of the creator. 9 The donor has transferred an economic interest in his estate to that of the donee by creating valuable present rights in the donee. 10 Nothing in ORS 119.010(4) purports to allow the donor to relieve himself from gift tax liability on neglecting to file a return for this or any other species of gift.
Defendant argues that ORS 118.010(3)(b), governing transfers in contemplation of death, gives support to its 'election' argument. ORS 118.010(3) provides:
'Any transfer of property made by a decedent by deed, grant, bargain, sale or gift, within three years prior to the decedent's death without a valuable and adequate consideration therefor, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of ORS 118.005 to 118.840; but no such transfer made before such three-year period shall be treated as having been made in contemplation of death if:
'(a) No gift taxes were payable under ORS chapter 119 on such transfer; or
'(b) All gift taxes payable under ORS...
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