Nunan v. Green

• Decision Date: 08 January 1945
• Docket Number: No. 12893.,12893.
• Citation: 146 F.2d 352,33 AFTR 381
• Parties: NUNAN, Commissioner of Internal Revenue, v. GREEN.
• Court: U.S. Court of Appeals — Eighth Circuit

33 AFTR 381, 146 F.2d 352 (1945)

NUNAN, Commissioner of Internal Revenue, v. GREEN.

No. 12893.

Circuit Court of Appeals, Eighth Circuit.

January 8, 1945.

Bernard Chertcoff, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and J. Louis Monarch, Sp. Assts. to the Atty. Gen., on the brief), for petitioner.

A. Z. Patterson, of Kansas City, Mo., for respondent.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The Commissioner seeks review of a decision of the Tax Court allowing the respondent a deduction from gross income in computation of his income tax for the year 1939, reported 3 T.C. 74.¹

It appears that the respondent here received his shares of the estates of his deceased father and of his deceased wife in distribution long before final assessment of the estate taxes, and in 1939 he paid, as transferee, his share of the deficiencies in estate taxes as finally established against the estates, together with the accrued interest. He has made no claim of right to deduction in his 1939 income tax of the amounts he paid on the principal of the estate taxes but claims deductions under section 23(b), Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code § 23(b), in the amounts of the accrued interest. His claim is that the interest he paid was "interest paid * * * within the taxable year on indebtedness," for which deduction is allowed by section 23(b). The Commissioner contends that the indebtedness meant in that section is indebtedness of the taxpayer claiming the deduction, and that the estate taxes and interest accrued thereon constituted indebtedness of the estates to the government and were not indebtedness of this taxpayer to which the deduction statute is applicable.

The Tax Court divided on the question. The majority held the taxpayer entitled to deduction for that portion of the interest paid which accrued after the taxpayer received his shares of the estates in distribution. It announced that it would not longer follow the Board of Tax Appeal's decision to the contrary in Sulzberger v. Commissioner of Internal Revenue, 33 B.T.A. 1093. The minority was of the opinion that all the interest accrued on the estate taxes was interest on indebtedness of the estates to the government and was not interest on indebtedness of the taxpayer deductible on payment by him under section 23(b). There was no disagreement on the court's declaration relative to section 23(b), that "The law is well established that in order for interest to be deductible from gross income it must be paid upon a debt owed by the taxpayer." Simon v. Commissioner of Internal Revenue, 36 B.T.A. 184; Colston v. Burnet, 61 App.D.C. 192, 59 F.2d 867, certiorari denied 287 U.S. 640, 53 S.Ct. 89, 77 L.Ed. 554; Longyear v. Helvering, 64 App.D.C. 238, 77 F.2d 116.

The substantial controversy arises under 26 U.S.C.A. Int.Rev.Code, § 900:

"Sec. 900. Transferred assets.

"(a) Method of collection. The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this subchapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds):

"(1) Transferees. The liability, at law or in equity, of a transferee of property of a decedent, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed by this subchapter.

* * * * *

"(e) Definition of `transferee.' As used in this section the term `transferee' includes heir, legatee, devisee, and distributee."

It is contended for the taxpayer that by virtue of these provisions the transferee of an estate becomes a substituted taxpayer or a substituted debtor, and that the unpaid estate tax and interest become the indebtedness of the transferee.

The purpose of the quoted transferee provisions found in the section relating to "Method of Collection" was merely to add to the Commissioner's old means of collecting taxes by creditor's bill or proceedings of that nature against the tax debtor's transferees, another collection procedure expected to be helpful to the same end. Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289; Phillips-Jones Corporation v. Parmley, 302 U.S. 233, 237, 58 S.Ct. 197, 82 L.Ed. 221; Baumgartner v. Commissioner, 21 B.T.A. 623, affirmed, 9 Cir., 51 F.2d 472, certiorari denied 284 U.S. 674, 52 S.Ct. 129, 76 L.Ed. 570. See paul's "Federal Estate and Gift Taxation," § 1346. The tax against the estate vested in the government a right to have the estate property applied to the satisfaction of the tax and interest. Updike v. United States, 8 Cir., 32 F.2d 1; Id., 281 U.S. 489, 50 S.Ct. 367, 74 L.Ed. 984; Bell v. Commissioner, 3 Cir., 82 F.2d 499; Neustadter v. United States, 9 Cir., 90 F.2d 34; Baumgartner v. Commissioner, supra; Phillips v. Commissioner, supra. The transferee provisions add to the means of...