United States v. Rhode Island Hospital Trust Company, 6618.

• Decision Date: 11 January 1966
• Docket Number: No. 6618.,6618.
• Parties: UNITED STATES of America, Defendant, Appellant, v. RHODE ISLAND HOSPITAL TRUST COMPANY et al., Plaintiffs, Appellees.
• Court: U.S. Court of Appeals — First Circuit

355 F.2d 7 (1966)

UNITED STATES of America, Defendant, Appellant, v. RHODE ISLAND HOSPITAL TRUST COMPANY et al., Plaintiffs, Appellees.

No. 6618.

United States Court of Appeals First Circuit.

Heard December 7, 1965.

Decided January 11, 1966.

Fred R. Becker, Atty., Dept. of Justice, with whom Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept. of Justice, and Raymond J. Pettine, U. S. Atty., were on brief, for appellant.

Walter F. Gibbons, Providence, R. I., with whom James T. Lodge and Armstrong, Gibbons & Lodge, Providence, R. I., were on brief, for appellees.

Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and CAFFREY, District Judge.

COFFIN, Circuit Judge.

This appeal presents the question whether the proceeds of a life insurance policy on decedent's life are properly includable in the gross estate of the decedent by reason of the alleged possession at his death of "any of the incidents of ownership, exercisable either alone or in conjunction with any other person", under Section 2042 of the Internal Revenue Code of 1954, 26 U.S.C. § 2042.¹

The Commissioner of Internal Revenue having included the proceeds of an insurance policy on the life of Holton W. Horton (decedent) in his gross estate and the sum of $14,185.85 in federal estate taxes and $1,004.67 in interest having been paid, the plaintiffs, co-executors under his will, made timely claim for refund and brought this action for recovery under 28 U.S.C. § 1346(a), alleging that such sums were erroneously assessed. The matter was submitted to the district court upon an agreed statement of facts and depositions. The district court found for the plaintiffs, D.R.I., 1965, 241 F.Supp. 586, and the government appeals.

The facts, undisputed, are of two kinds: "intent facts" — those relating to the conduct and understanding of the insured and his father, who was the instigator, premium payer, and primary beneficiary of the policy; and the "policy facts" — those revealed by the insurance contract itself.

Decedent's father, Charles A. Horton, was a textile executive, a prominent businessman in his community, and, according to the testimony, "a man with strong convictions and vigorous action". Charles and his wife, Louise, had two sons, decedent and A. Trowbridge Horton. In 1924, when decedent was 18 and Trowbridge 19, their father purchased an insurance policy on the life of each boy from Massachusetts Mutual Life Insurance Company. The policies were identical, each having the face amount of $50,000, the proceeds being payable to Charles and Louise, equally, or to the survivor.

Charles Horton's purpose was to assure that funds would be available for his wife, should he and either son die. Charles kept the policies in his safe deposit box and paid all premiums throughout his life. Under the policies, however, the right to change beneficiaries had been reserved to the sons. In January, 1952, the boys' mother, Louise, died. In March, 1952, Charles told each of his sons to go to the insurance company's office and sign a change of beneficiary form. The amendment executed by decedent named his father as primary beneficiary, with decedent's wife, brother, and the executors or administrators of the last survivor being the successive beneficiaries. After this amendment, decedent continued to retain the right to make further changes, but none was made. Decedent died on April 1, 1958, survived by his wife and father. His father died on October 2, 1961.

The father, Charles, regarded the policies as belonging to him, saying at one point that it would be "out of the question" for the sons to claim them. Decedent's brother never discussed the policies with his father, never asked for a loan based on the policies, obediently signed the change of beneficiary form at his father's request, and considered the policy on his life as the property of his father. Decedent's widow recalled only that decedent had once told her that his father had a policy on himself and his brother but that "in no way did it mean anything to us or would it ever. It was completely his." She added that her husband, the decedent, had wanted more insurance of his own, but was not able to obtain it.

Coming to what we call "policy facts", a careful reading of the policy, captioned "Ordinary Life Policy — Convertible", reveals the following rights, privileges, or powers accorded to the decedent.

— Right to change beneficiary. In the application, an unrestricted change of beneficiary provision was elected by striking out two alternative and more limited provisions.² The policy itself indicated reservation of "the right successively to change the beneficiary" by the insertion of typewritten dashes where, otherwise, the word "not" would have been inserted.

— Assignment. No assignment would be recognized until the original assignment, a duplicate, or a certified copy was filed with the company. The company did not assume responsibility for the validity of an assignment.

— Dividends. The insured had the option to have dividends paid in cash, used to reduce premiums, used to purchase paid-up additions, or accumulate subject to withdrawal on demand.

— Loans. On condition that the unlimited right to change the beneficiary was reserved, as in this case, the company would "loan on the signature of the insured alone".

— Survival. Should no beneficiary survive the insured, the proceeds were payable to his executors and administrators.

— Alteration. The policy could be altered only on the written request of the insured and of "other parties in interest".

— Discharge of company's obligations. The company would not be responsible for the conduct of any trustee or for the determination of the identity or rights of beneficiaries. Payment at the direction of a trustee or in good faith to a benficiary would discharge the company of its contractual obligations. Beneficiaries were advised by the policy that they need hire no firm or person to collect the amount payable under the policy, but that they would save time and expense by writing to the company directly.

The plaintiffs contend that the district court properly held that decedent possessed no incidents of ownership in the policy; that the term "incidents of ownership" refers to the rights of insured or his estate to the economic benefits of the policy; that the question of possession of such incidents is one of fact; that such possession depends upon all relevant facts and circumstances, including the intention of the parties; and that these facts and circumstances clearly establish that decedent's father was the real owner of the policy, while decedent was merely the nominal owner, having no real economic interest in it.

The government asserts that, as a matter of law, the facts bring this case squarely within the reach of Section 2042, as applied by the cases, notwithstanding the evidence as to the intentions and extra-policy circumstances of the parties, and the lack of economic benefit to decedent.

At the outset we are confronted with the issue of the nature of this review. It is undoubtedly true that the question of possession of incidents of ownership of a life insurance policy is one of fact, the plaintiff having the burden of proving non-possession of all. Estate of Piggott v. Commissioner of Internal Revenue, 6 Cir., 1965, 340 F.2d 829; Fried v. Granger, W.D.Pa., 1952, 105 F.Supp. 564, affirmed, 3 Cir., 1953, 202 F.2d 150; Hall v. Wheeler, D.Me., 1959, 174 F.Supp. 418; Estate of Collino v. Commissioner, 1956, 25 T.C. 1026. But where all of the evidentiary facts appear, we are faced with a question of law not of fact. Were we to proceed otherwise, cases presenting identical or closely similar facts in this technical and complex field could be decided oppositely, to the disadvantage of equitable tax administration.

Taking the subsidiary facts as presented to the district court, we differ with its conclusion that "the decedent's father was actually the real owner of the various incidents of ownership in said policy". But in differing we recognize that early holdings and occasional dicta, early and late, have invited litigation. This is the kind of case where the government enters, appearing to seek its pound of flesh on the basis of petty technicality, while the taxpayer's decedent generally appears as a person who had very little to do with the insurance policy which is causing so much trouble to his estate. If such hard cases have not made bad law, they have at least made bad dicta. Although the Supreme Court has recently (indeed, since the principal hearing of this case before the district court) spoken strongly and succinctly on this issue in Commissioner of Internal Revenue v. Estate of Noel, 1965, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159, of which more will be said, we think it appropriate to set forth the considerations of fact, law, and policy which have persuaded us.

To begin, the statute which bears on this case has a reason for being, is part of a general rationale and tax law pattern, and is deliberately precise. Before the Revenue Act of 1942, the tax criterion governing cases in this area was "policies taken out" by the decedent on his own life. Section 302(g), Revenue Act of 1926, ch. 27, 44 Stat. 9. This led to difficult problems of interpretation, which the courts resolved by creating two criteria: "payment of premiums" and possession of "incidents of ownership". The Revenue Act of 1942, ch. 619, 56 Stat. 798, Section 404, eliminated the "policies taken out" language, and sanctified the judicial gloss, with Congress, in its committee reports, including an illustrative list of the kinds of rights included under "incidents of ownership". These included decedent's right to change beneficiaries, to borrow, to assign, to revoke an assignment, and to surrender or cancel. H.Rep.No.2333, 77th Cong., 2d Sess., p. 164, 1942-2 Cum.Bull. 372, 491.³

In acting this way, Congress was, we think, trying to...