Moore v. Commissioner of Internal Revenue

• Decision Date: 11 November 1930
• Docket Number: Docket No. 40790.
• Citation: 21 BTA 279
• Parties: EDWARD C. MOORE, JR., AND CENTRAL UNION TRUST CO. OF NEW YORK, EXECUTORS, ESTATE OF EDWARD MOORE, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Board of Tax Appeals

21 B.T.A. 279 (1930)

EDWARD C. MOORE, JR., AND CENTRAL UNION TRUST CO. OF NEW YORK, EXECUTORS, ESTATE OF EDWARD MOORE, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 40790.

Board of Tax Appeals.

Promulgated November 11, 1930.

John W. Drye, Jr., Esq., and Lester L. Colbert, Esq., for the petitioners.

L. S. Pendleton, Esq., for the respondent.

This proceeding involves a deficiency of $15,860.73 in estate taxes. Petitioners contest the inclusion in decedent's gross estate of the value of securities transferred to his son within two years of death; the disallowance of deductions of alleged charitable bequests and a claim against the estate; and the disallowance of credit for State taxes alleged to have been paid.

FINDINGS OF FACT.

Petitioners are the duly authorized executors of the estate of Edward Moore, deceased, who died a resident of the State of New York on August 6, 1924, at the age of 86.

1. On June 18, 1923, decedent gave to his son, Edward C. Moore, Jr., specified United States certificates or Treasury bonds amounting to $100,000. Again on October 17 and December 24, 1923, he gave his son specified United States certificates or Treasury bonds amounting to $130,000 and $150,000, respectively. The transfers of the securities were not made by decedent in contemplation of death.

2. On May 13, 1930, the Supreme Court of New York State, after affirmance on appeal to the Court of Appeals, entered a final judgment for $49,749.46 and costs of $248.90 in favor of John L. Curley and Jessica Shewan, executors, against petitioners as executors of Edward Moore's estate, and others. Of said judgment and costs, the share to be paid by the petitioners is $19,465.07.

3. By the second clause of his will decedent bequeathed $1,000 for repairs to St. Stephens Church, a Catholic church of Schuylkill County, Pennsylvania, and by the third clause he bequeathed $500 to the Sisters of St. Stephens School for the general educational purposes of the school. Both beneficiaries are incorporated. Neither bequest has yet been paid.

4. The Surrogate of Kings County, New York, on August 8, 1928, made a "Decree Assessing and Fixing Tax" of which $475.37 was upon the bequests directly to children, and $980 was upon contingent remainders. The former amount has been reduced to $451.60 and has been paid. The latter amount of $980 was deposited "as provided by section 241 of the New York Tax Law."

OPINION.

STERNHAGEN:

1. There is evidence to support the conclusion that the transfers of securities made by decedent to his son were not made in contemplation of death and there is also evidence against such conclusion. Since each case involving this question must be decided by weighing the evidence in the record, it would serve no useful purpose to narrate or discuss it at length. Bearing in mind at all stages of our consideration that the burden is upon the petitioner to prove facts sufficient to overcome the statutory presumption and the Commissioner's determination, Wickwire v. Reinicke, 275 U. S. 101, we think the preponderance of the evidence supports the petitioner and have therefore found as a fact that the transfers were not made in contemplation of death. The value of the securities and accrued interest should be excluded from the gross estate.

2. The respondent disallowed any deduction in respect of the Shewan judgment because "this case is still in litigation." It has now reached a final judgment and the petitioners' share of the liability is $19,465.07. It is a definitely ascertained claim...