Farmers Bank & Trust Co. v. Commissioner

FARMERS BANK & TRUST CO., EXECUTOR, ESTATE OF HIRAM F. HAMMON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Farmers Bank & Trust Co. v. Commissioner Docket No. 10914. United States Board of Tax Appeals 10 B.T.A. 43; 1928 BTA LEXIS 4202; January 20, 1928, Promulgated *4202 1. A transfer by decedent in trust for certain beneficiaries held to have been made in contemplation of death. 2. The amount of $4,305 interest accrued on the corpus of the trust herein held to have been made in contemplation of death, is part of the gross estate. 3. Commissioner's action in including in decedent's gross estate the value of a certain contract under which decedent was to be paid an amount in the manner set forth in the contract, approved in part. 4. Deduction from decedent's gross estate of the amount of $1,500 due and owing at the time of his death, disallowed. William S. Hammers, Esq., for the petitioner. R. E. Copes, Esq., and L. S. Pendleton, Esq., for the respondent. LOVE *43 This proceeding results from the Commissioner's action in rejecting in part the petitioner's claim in abatement of an estate tax upon the estate of Hiram F. Hammon, deceased. The amount in controversy is $16,245.08. It is alleged that the Commissioner, in making his determination, erred in the following particulars: 1. In including in decedent's gross estate the amount of $129,721.11, the value of the corpus of the trust*4203 created on March 22, 1917. 2. In including in the gross estate the amount of $4,305, interest accrued on the corpus of the trust created on March 22, 1917. 3. In including in the gross estate the amount of $13,940.49, the amount of a debt owed decedent by one Hardin. 4. In disallowing as a deduction from the gross estate the sum of $1,500 paid out by the executor pursuant to a certain trust agreement for the development of a certain farm property. FINDINGS OF FACT. The petitioner, the Farmers, Bank & Trust Co., is a Florida corporation having its principal office at West Palm Beach, and is the duly appointed executor of the estate of Hiram F. Hammon, deceased. The petitioner, as such executor, duly filed a return for the estate of the deceased. Hiram F. Hammon died on November 15, 1922, while a resident of and domiciled in the State of Florida. At the time of his death he was about 83 years of age. On March 22, 1917, by an instrument in writing, the decedent transferred in trust, for a period beginning April 1, 1917, and ending *44 April 1, 1922, unto L. P. McCord, Roscoe T. Anthony, and Horace W. Power, as trustees for the benefit of Ella H. Power, *4204 William H. Power, Atelia P. Robinson, Horace P. Robinson, and Wallace A. Robinson, the following property as the corpus of the trust: A mortgage executed by O. S. Miller and his wife, Lois R. Miller, for $38,000, recorded in Mortgage Book 19 at page 225; a mortgage executed by O. S. Miller and his wife, Lois R. Miller, for $6,000, recorded in Mortgage Book 19 at page 220; a mortgage executed by Morton C. Nichols and his wife, Ethel D. Nichols, for $23,000, recorded in Mortgage Book 19 at page 240; a mortgage executed by Ethel D. Nichols and her husband, Morton C. Nichols, for $30,000, recorded in Mortgage Book 19 at page 239, all according to the records in the office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, and a certain promissory note executed by Roscoe T. Anthony, endorsed by A. P. Anthony, in the sum of $3,000. The trustees were directed: (a) To collect the interest or revenue from each of the obligations constituting the corpus of the trust and to pay the same out in monthly installments of $100 to each of the five beneficiaries, the decedent covenanting on behalf of himself, his executors and assigns, that if the interest derived from the corpus*4205 of the trust was insufficient to meet the monthly payments to each of the beneficiaries, the amount needed to make the payments would, upon demand by the trustees, be furnished by him. (b) If any of the obligations comprising the corpus of the trust were paid or terminated before April 1, 1922, to reinvest, after conferring with each other, the amount of such obligation so paid or terminated. (c) Upon termination of the trust, to wit, April 1, 1922, to apportion the trust estate equally among the beneficiaries. The trust instrument provided for filling any vacancy among the trustees in case of death or resignation and by paragraph 8 thereof it was provided: In case I (Hiram F. Hammon) am surviving on April 1, A.D. 1922, I hereby reserve the privilege to continue all or any part of this trust for an additional period of five (5) years. On March 22, 1917, L. P. McCord, Roscoe T. Anthony and Horace W. Power, the trustees named in the trust instrument, accepted the trust and agreed to perform the duties of the same. And on the same day, the decedent by an instrument in writing assigned to the trustees named in the declaration of trust, the several mortgages and the note*4206 specified in the said declaration. On April 1, 1922, the decedent executed a declaration of trust in which, among other things, he stated: *45 THIS AGREEMENT, made this the 1st day of April, A.D. 1922 between HIRAM F. HAMMON, a bachelor, of Palm Beach County, Florida, party of the first part, and FARMERS BANK & TRUST COMPANY, a corporation under the laws of Florida, with its principal place of business at West Palm Beach, Florida, hereinafter called Trustee, and ELLA H. POWER, WILLIAM H. POWER, ATELIA P. ROBINSON, HORACE P. ROBINSON, and WALLACE A. ROBINSON, hereinafter called beneficiaries. WHEREAS, the party of the first part, did, on the 22nd day of March, A.D. 1917, make a certain contract whereby he did transfer, sell and assign to one L. P. McCord, Roscoe T. Anthony and Horace W. Power certain securities therein named, in trust, however, for the above named beneficiaries, and which said contract was duly proved for record and filed and duly recorded among the public records of Palm Beach County, Florida, in Book of Deeds 88, at page 440, and WHEREAS, it is provided in and by said contract that it shall continue for a period of five (5) years from April 1st 1917, *4207 but in case the party of the first part shall be living on April 1st, A.D. 1922, the date of the expiration of the contract, that he therein reserves the privilege to continue all or any part of said trust for an additional period of five (5) years, and WHEREAS, the party of the first part desires to continue said trust, THEREFORE, THIS AGREEMENT WITNESSETH: That the party of the first part does name, constitute and appoint said trustee as a trustee under this trust, with full power and authority to execute this trust according to the terms and conditions herein set forth. The said party of the first part does hereby transfer, sell and assign to said trustee in trust, however, for the above named beneficiaries, with power and under the conditions herein set forth the following described securities, to-wit: 1. That certain mortgage from Rosa Seward Anthony and J. R. Anthony to Hiram F. Hammon, dated the 1st day of September, A.D. 1919, executed to secure a note for Fifth Thousand Dollars ($50,000.00), bearing even date therewith and due on or before ten years after the date thereof, together with said indebtedness so secured by said mortgage, which said mortgage is recorded*4208 in Mortgage Book 35, at page of the public records of Palm Beach County, Florida. 2. That certain mortage from Anthony Investment Company to Hiram F. Hammon, dated the 25th day of March, A.D. 1919, executed to the said Hiram F. Hammon to secure a note bearing even date therewith for the sum of Thirty-five Thousand Dollars ($35,000.00), payable on or before ten (10) years from the date thereof, together with the indebtedness secured by said mortgage, which said mortgage is recorded in Mortgage Book 31 on page 513 of the public records of Palm Beach County, Florida. 3. That certain note executed by E. D. Anthony and A. P. Anthony to Hiram F. Hammon, dated March 1st, 1919, for the sum of Thirty-eight Thousand Dollars ($38,000.00) payable five (5) years after the date thereof, together with the collateral security deposited to secure said note, said collateral security being thirty notes aggregating Forty-two Thousand Five Hundred Twenty-seven Dollars ($42,527.00), signed by David Afremoore and Sarah Afremoore, dated October 1st, 1917. In the instrument, the trustee was directed: (a) To collect the interest from each of the obligations comprising the corpus of the trust and*4209 to pay out the sum so collected in monthly installments of $100 to each of the five beneficiaries. *46 (b) If any of the obligations were paid or terminated before April 1, 1927, to reinvest, with the approval of Hiram F. Hammon or his executors, administrators, heirs or assigns, the amount of each obligation so paid. (c) Upon the termination of the trust, to wit, April 1, 1927, to apportion the trust estate equally among the beneficiaries. Among other things the decedent also covenanted that if during the existence of the trust the interest derived from the obligations comprising the corpus was not sufficient to meet the monthly payments of $100 to each of the beneficiaries, the decedent, his heirs, executors and assigns, would, upon demand, complete the amount necessary to make the payment. The decedent collected the interest from the corpus of the trusts and deposited the same in his personal amount which he carried with the petitioner. He then authorized the petitioner to pay the beneficiaries out of his personal accounts in excess of the interest collected. At the time of his death decedent had collected and deposited in his account interest in the amount*4210 of $4,305. In making the return for the decedent's estate, the petitioner did not include in the gross estate the amoung of $129,721.11, the value of the aforesaid trust fund as of the date of the decedent's death or the amount of $4,305 interest collected from the trust fund by decedent and credited to his personal account. On March 22, 1922, the decedent acquired by bill of sale of that date, a Buckeye Ditching Machine, from a copartnership, the H.P. & W. Construction Co. The circumstances in connection therewith were these: The Construction Company was in financial distress and an agreement was made with the decedent whereby the machine would be sold to him on the understanding that he would pay all of the obligations of the company, amounting to $13,940.49. By another agreement, dated March 24, 1922, the decedent sold the machine to one Hardin for $13,940.49. Hardin was to operate the machine and to pay for it on an installment basis. At the time of decedent's death there was due him from Hardin the sum of $12,000 on account of the machine sold. While Hardin was not insolvent at that time, the petitioner's vice president considered that the full amount could not be*4211 collected even if a judgment were obtained against him. Thereafter, petitioner reached a tentative agreement with Hardin to accept his note for $2,000 in full settlement of the contract obligation. However, the agreement was not carried out and no payments have been made since that time by Hardin. In the return made by petitioner, the debt owing by Hardin was not included in the gross estate on the ground that it was worthless. By an instrument in writing, dated May 31, 1922, the decedent transferred certain real estate in Broward County, Florida, to the *47 petitioner, in trust for a specified purpose, namely, the development of the land as a farm. By the instrument of transfer, the decedent obligated himself during his lifetime, and his estate after his death, to advance money to meet the expenses of development in such an amount as might be required, not to exceed $3,000 in any one month. During his lifetime, decedent had advanced, pursuant to the agreement, $3,000 monthly and after his death there was advanced from his estate $3,000 monthly. On November 29, 1922, the decedent's estate was charged with $1,500 which was paid to the trustees for the first half*4212 of November, 1922, decedent having died on November 15, 1922. In the return petitioner deducted the amount of $1,500 so paid. Upon audit of the return, the Commissioner included in the gross estate the amount of $129,721.11, the value of the corpus of the trust of April 1, 1922, the amount of $4,305 interest collected by decedent from the trust of April 1, 1922, and the amount of $13,256.24 which he determined to be the amount of the debt owing by Hardin. He also disallowed the deduction of $1,500 paid to the trustees on November 29, 1922, on account of the agreement for development expenses. OPINION. LOVE: The petitioner's first contention is that the property comprising the corpus of the trust, the value of which was included in decedent's gross estate by the Commissioner, was erroneously included therein for the reason that the title and all beneficial interest in the corpus of the trust had finally and irrevocably passed from the decedent under the declaration of trust dated March 22, 1917, and under the assignment to the trustees dated the same date. And, it is further contended in this respect that as the trust was created by the decedent on March 22, 1917, more than*4213 two years before his death on November 15, 1922, there is no presumption that such trust was made in contemplation of death or to take effect in possession or enjoyment at or after death, and that the burden of proving that such trust was so made is on the Commissioner. The Commissioner, however, in determining the gross estate included therein the value of the corpus of the trust declared April 1, 1922, to wit, $129,721.11. The petitioner in making its first contention does so upon the theory that in declaring the trust of Arpil 1, 1922, the decedent merely exercised the right to continue the trust declared March 22, 1917, which right was reserved therein. It is clear that if the trust of April 1, 1922, was not a continuation of the trust of March 22, 1917, we do not have before us any question with respect to the trust first in point of time. In other words, if the first trust is not before us for consideration of the question as to whether it was in fact *48 made in contemplation of death or to take effect in possession at or after death, then we need not discuss the petitioner's contention with respect to the burden of proof. The trust instruments of March 22, 1917, and*4214 April 1, 1922, show upon their faces that the second is not a continuation of the first, as the petitioner contends. The instruments contain substantially different provisions. The corpus of the second trust is entirely different from that of the first. It will be observed that the securities comprising the corpus of the trust of April 1, 1922, are not the securities comprising the corpus of the trust of March 22, 1917. The record does not contain one word of explanation concerning this apparent difference betweent he two trusts. We do not know and we can not assume that the corpus of the second trust represents merely the reinvested corpus of the first. On the record, we can only hold that the trust of April 1, 1922, is not a continuation of the trust of March 22, 1917. Consequently, we are not now concerned with the circumstances surrounding the making of the trust of March 22, 1917. We must consider, therefore, the question presented with respect to the trust created on April 1, 1922. Section 402(c) of the Revenue Act of 1921 provides - That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all*4215 property, real or personal, tangible or intangible, wherever situated - * * * (c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title. It is clear, therefore, that the Commissioner having determined that the trust was made in contemplation of death, the burden of proof is on the petitioner in this respect, and in addition there is the statutory presumption. See *4216 . We are not concerned with the question as to whether the trust of April 1, 1922, was intended to take effect in possession or enjoyment at or after decedent's death for the reason that his death had no effect whatever upon possession or enjoyment of the trust property. The time for distributing the trust was fixed irrespective of the time of decedent's death. As above stated, in addition to the statutory presumption that it was so made, there is the Commissioner's determination that the *49 trust of April 1, 1922, was made in contemplation of death. The petitioner, therefore, must sustain the burden of proof in showing that the trust was not made in contemplation of death. In determining whether such was the case, we are, of course, bound by such facts relative thereto as are disclosed by the record. All of the evidence in the record bearing upon the question as to whether the trust of April 1, 1922, was made in contemplation of death is the testimony of the vice president and trust officer of the petitioner, who did not disclose how long and how intimately he had known, or how often he had seen, the deceased. *4217 His testimony is quoted. DIRECT EXAMINATION. Q. What was the age of Mr. Hammon at the time of his death? A. About 83, I believe. Q. Do you know personally what his general condition was? A. His general condition up to the time of his death was very good. Q. Was he active in attending to business previous to that time? A. He was. I mean by that up to about two days before he died. Q. Do you know the cause of his death? A. No, I do not. I know that he couldn't retain any nourishment just before he died. CROSS EXAMINATION. Q. Mr. Morris, you testified, I believe, that at the date of death of Mr. H. F. Hammon he was 83 years of age? And at the date of the first trust in 1917 he would have been approximately 77? A. Approximately. Q. Did you ever hear him discuss his motive for providing for an extension of this trust for five years? A. I did. Q. What explanation have you to make? A. The main reason for his extending the trust was for his not wanting the beneficiaries to come into possession of the principal, as it was his opinion they would soon squander it. Consequently he extended the trust continuing the monthly payments. *4218 Q. Did he intimate that he wanted this trust to continue as long as he lived? A. No. Q. Now, about the state of his health. When you stated his condition was good, did you mean it was good for a man of his age? A. His health was always extremely good for a man of his age. Q. Did you ever know of any chronic disease that he had? A. I never knew him to have a sick day during my entire acquaintance with him. From the foregoing it is obvious that we are not informed as to the decedent's motive for making the trust of March 22, 1917, but even were we so informed, the motivating influence present at that time may not have been the same as that present at the making of the second and new trust of April 1, 1922. It is possible that on April 1, 1922, the decedent wished to postpone any payment to the *50 beneficiaries but at the same time the second trust may have been made in contemplation of death as used in the statutory sense. The only testimony we have, therefore, with respect to the circumstances surrounding the creation of the trust of April 1, 1922, is to the effect that the decedent had not been ill and was in good health for a person of his age. *4219 However, as before pointed out, this testimony was given by one whose qualifications are not shown. And in this connection it should be observed that the witness did not know the cause of the decedent's death. We are of the opinion, therefore, that the petitioner by the evidence adduced has failed to overcome the statutory presumption that the trust was made in contemplation of death or to sustain the burden of proof placed on it by the Commissioner's determination. Accordingly, we approve the Commissioner's action in including in decedent's gross estate the value of the trust of April 1, 1922, to wit, $129,721.11. The petitioner's next contention is that the amount of $4,305 interest collected from the trust in question by decedent and credited to his personal account, belonged to the trust and should be included therein. Having decided that the trust from which the interest was collected by decedent should be included in the gross estate, it follows that the accrued interest would also be included in the gross estate. The petitioner's contention can not be sustained for this reason. However, as will be observed from the findings of fact, decedent collected the interest*4220 from the trust and paid the beneficiaries a larger sum. This, for an added reason, would defeat petitioner's contention with respect to the interest in question. We approve, therefore, the Commissioner's action in including $4,305 interest collected from the trust in the gross estate. The petitioner's third contention is that the Commissioner erred in including in the gross estate the value of the contract between decedent and Hardin for the reason that the amount owing thereunder was uncollectible. The evidence fails to establish that the debt under the contract was worthless. We think that it is shown that the petitioner placed a value on the contract of $2,000 and, therefore, we hold that amount to be its value as of the time of decedent's death. However, the Commissioner admits that he determined the value of the contract to be $13,256.24 as of time of decedent's death and that he included in the gross estate that amount. Accordingly, the gross estate should be reduced $11,256.24 in respect of this item. The last contention advanced by the petitioner is that the Commissioner erred in disallowing a deduction of $1,500, which amount *51 it paid on November 29, 1922, on*4221 account of the trust instrument of May 31, 1922, whereby decedent obligated himself during his lifetime, and his estate after his death, to pay expenses on a certain development, not in excess of $3,000 monthly. We are unable to determine from the record the nature of the alleged expenses incurred in connection with the development of the property under the trust of May 31, 1922. It is apparent, of course, that if the money advanced was expended for purposes other than ordinary maintenance and upkeep of the farm in question, such expenditures would be capital expenditures in their nature. The word "development" places us on notice to scrutinize closely the expenditures made in connection therewith. The petitioner having failed to produce any evidence with respect to ultimate disposition of the amount in question, we can only approve the Commissioner's determination in disallowing as a deduction from the gross estate the amount of $1,500, alleged to represent a deductible expense. Judgment will be entered on 15 days' notice, under Rule 50.