Loose v. Commissioner

ELLA C. LOOSE, EXECUTRIX, ESTATE OF JACOB L. LOOSE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Loose v. Commissioner Docket Nos. 8699, 8701. United States Board of Tax Appeals 15 B.T.A. 169; 1929 BTA LEXIS 2908; January 31, 1929, Promulgated *2908 1. Interest accrued on corporate bonds owned by decedent but not matured at time of his death becomes part of the corpus of his estate and when collected is not income to the estate. 2. Interest coupons matured prior to death of decedent on bonds of solvent corporations which would have paid the same on presentation and which coupons were not cashed by reason of the illness of decedent, held to have been constructively received by decedent during his lifetime and to constitute income to him. Paul R. Stinson, Esq., for the petitioner. L. A. Luce, Esq., for the respondent. VAN FOSSAN *170 In Docket No. 8699 petitioner asks redetermination of a proposed deficiency in income taxes of $650.85 for the period September 18, 1923, to December 31, 1923. In Docket No. 8701 the alleged deficiencies amount to $1,912.86 for 1922 and $12,974.86 for the period January 1, 1923, to September 18, 1923. The amount in controversy in this proceeding is $9,447.73. FINDINGS OF FACT. The following facts were stipulated in Docket No. 8699: 1. Petitioner is the executrix and sole residuary beneficiary of the will of Jacob L. Loose, deceased. Jacob*2909 L. Loose died on September 18, 1923, the petitioner was appointed executrix of his will by the Probate Court of Jackson County, Missouri, at Kansas City, and qualified as such. 2. After the death of Jacob L. Loose, but before December 31, 1923, there matured out of corporate bonds owned by him at his death interest coupons totaling $7,187.50. The petitioner as executrix collected these interest coupons during the year 1923. Of the $7,187.50 of said interest coupons, the sum of $1,451.04 accrued after the death of Jacob L. Loose, and the balance accrued prior to September 18, 1923. 3. In making her income-tax return as executrix, petitioner reported as taxable income for the period September 18, 1923, to December 31, 1923, from said coupons the sum of $1,451.04, being the portion representing interest accruing after the death of Jacob L. Loose. In her return petitioner called attention to the basis upon which she was reporting the income upon such bond coupons. 4. The petitioner reported the accrued but unmatured interest up to September 18, 1923, as a part of the gross estate of Jacob L. Loose, deceased, and paid the Federal estate tax thereon. 5. Under the will*2910 of Jacob L. Loose, deceased, the taxpayer was named sole residuary legatee. The taxpayer has paid all debts of the estate of Jacob L. Loose, deceased, and all legacies under his will, including the portion of his estate to her as residuary legatee thereunder. The taxpayer made her final settlement as executrix and was discharged by the Probate Court of Jackson County, Missouri, on the 26th day of November, 1924; the amount received by the taxpayer as residuary legatee aforesaid and now held and owned by her is far in excess of whatever may be necessary to pay all taxes *171 and other obligations, if any there be, of the estate of Jacob L. Loose, deceased. The taxpayer, because of having been executrix under the will of Jacob L. Loose, deceased, and because of being residuary legatee under the will of Jacob L. Loose, deceased, and having received the residuary estate, is liable for the payment in full of any and all taxes, including the amount herein in dispute, which are or may be owed by the estate of Jacob L. Loose, deceased, to the exclusion of other legatees and devises under the will of said Jacob L. Loose, deceased. 6. If all of the $7,187.50 in bond coupon interest*2911 collected by the petitioner as heretofore shown is taxable income to her as executrix for the year 1923, then there is a deficiency in favor of the respondent Commissioner in the sum of $650.85. If that part of such bond coupon interest which accrued prior to September 18, in the year 1923, is not taxable as income, then there is no deficiency and nothing due to the Commissioner as and for income tax for the period September 18, 1923, to December 31, 1923, from petitioner as executrix of the will of Jacob L. Loose, deceased. In Docket No. 8701 the following facts were stipulated: 1. Identical with paragraph No. 1 in Docket No. 8699. 2. Immediately upon qualifying as executrix, there came into the possession of the petitioner corporate bond interest coupons in the total sum of $34,687.50, all of which coupons matured between December 31, 1922, and September 18, 1923, during the life of Jacob L. Loose, but which he did not cash or collect prior to his death, September 18, 1923. The corporations which issued the bonds owned and held by Mr. Loose were solvent, and the interest money represented by the coupons would have been paid at maturity if such coupons had been presented*2912 for payment. 3. During his lifetime Jacob L. Loose kept his books and records and made his Federal income-tax returns for calendar years on a cash receipts and disbursement basis. 4. The taxpayer in making income-tax return for Jacob L. Loose, deceased, for the portion of the year 1923 during which he was alive, did not report those corporate bond interest coupons as taxable income of Jacob L. Loose, and called attention to this fact in her return. Taxpayer deducted $774.54 tax paid at source. 5. The $34,687.50 so received by and brought into the possession of the petitioner as executrix was reported to and found by the Commissioner to be a part of the assets of the estate of Jacob L. Loose, deceased, subject to the Federal estate tax, and the Federal estate tax thereon has been paid. 6. Identical with paragraph No. 5 in Docket 8699. 7. If the taxes (sic.) (amounts) in controversy were and are income of Jacob L. Loose for the year 1923 and taxable as such, then *172 the amount due the Commissioner is $9,477.73. If such bond coupons were and are not taxable income for the year 1923 during the lifetime of said Jacob L. Loose, then there is no deficiency*2913 and nothing due to the Commissioner as and for income taxes of Jacob L. Loose, deceased, for the period of January 1, 1923, to September 18, 1923. The following facts are also established by the record: Some five years previous to his death decedent suffered a stroke of paralysis, followed by a two-months' illness. Thereafter he was able to be around with the help of a nurse until May, 1923, when he had another severe illness from which he never recovered. On June 6, 1923, during this last illness, decedent was taken from Kansas City to his summer home in Gloucester, Mass., where he remained until his death on September 18, of that year. During the taxable years and for some years theretofore decedent had kept in a safety-deposit box in a New York bank a certain number of corporate coupon-bearing bonds. Prior to the illness of 1918 it was decedent's practice to go to New York alone twice each year to clip and cash the matured coupons on these bonds. After his first illness this trip to New York was made an incident of the trip from Kansas City to Gloucester, Mass., and return in June and September, respectively, decedent always being accompanied by his wife (executrix and*2914 petitioner herein), who performed the actual operation of clipping the coupons and attended to his other business affairs in New York. Due to the seriousness of his physical condition it would have been impossible for decedent to have gone to the bank during the trip to Gloucester and this condition existed up to the time of his death. Decedent's wife had access to the safety-deposit box but felt unable to leave her husband during his last illness. In many instances during the years 1915 to 1922 decedent did not cash bond interest coupons for several months after the same matured and often not until the next taxable year. OPINION. VAN FOSSAN: The issue raised by the facts in proceeding 8699 brings the case squarely within our decisions in , and . The bond interest which had accrued at the time of decedent's death, though the coupons had not matured, represents, nevertheless, a debt due decedent. At his death it became a part of the corpus of his estate subject to the estate tax. Upon collection by the executrix there was a conversion of a debt into its equivalent in*2915 money, but the funds so derived did not constitute income to the estate. *173 . Respondent erred in treating the same as such. The question presented in proceeding 8701 is whether or not petitioner's decedent, Jacob L. Loose, received certain income during his lifetime. Briefly the facts, more fully set out in the findings of fact, are that Loose, who kept his accounts upon a cash basis, lived in Kansas City, Mo., but kept certain interest-bearing bonds in a safety-deposit box in New York. It was his custom to stop in New York twice each year while en route between Kansas City and his summer home in Gloucester, Mass., to clip and cash the matured coupons. Decedent's wife always accompanied him on these trips. In May, 1923, Loose was suffering from a severe illness and the condition of his health prevented him from stopping for the usual mid-year business visit in New York. His disability continued until his death in September of the same year. The consequence of this situation was that the interest coupons that matured between December 31, 1922, and the time of his death on September 18, 1923, were not clipped or cashed*2916 until after his death when his estate came into the hands of his wife as executrix. It is stipulated that the issuing corporations were solvent and that the coupons would have been cashed on presentation. The only reason assigned for the failure to clip and cash the coupons was the ill health of decedent. In making the income tax return for the period of 1923 ending at decedent's death petitioner, as executrix, did not report the amount received from said coupons as income of decedent. It was, however, reported as part of the assets of the estate of decedent and the estate tax was paid thereon. Respondent determined that the decedent Loose constructively received during his lifetime the interest represented by the coupons and found a deficiency accordingly. We have repeatedly said that the doctrine of constructive receipt of income by one on a cash basis of accounting should be sparingly applied and we adhere to that position. The facts in this case, however, seem to us to present a situation constituting the exceptional case where the application of the doctrine is called for. It is stipulated that the interest coupons had matured; that the issuing corporations were*2917 solvent; and that the coupons would have been paid on presentation. Nothing remained to be done except the presentation of the coupons for cashing. This action was not taken solely because of decedent's ill health. In , salary credited to but not received by the taxpayer in the taxable year as an officer of a corporation which was controlled by the taxpayer and another person and was able to pay such salary, was held to have been constructively received. In discussing the principal of constructive receipt the Board there said: *174 Doubtless, however, there are clear cases of constructive receipt, such, for example, as that of the bond owner who chooses not to cash his coupon but to permit it to remain uncut in the possession of another. He will not be heard to say that the amount of the coupon is not his income because he did not in fact receive it. The receipt is entirely within his own control and disposition. Though the above statement was, in that case, in part obiter dicta, we believe it to be a correct enunciation of the law. A contrary holding would grant the taxpayer a practically complete right of selection*2918 of the year in which income would be reported, something not contemplated by the revenue acts. Applying the above test, clearly Loose received income. The fact and time of physical receipt have become a matter solely within his own control. Though in this case decedent was physically unable to attend to the actual operation of clipping and cashing the coupons, there is no evidence of mental infirmity and there appears no reason why this operation might not have been performed by a properly accredited agent or why the bonds might not have been sent to petitioner's home and the matter of the clipping of the copons there attended to. We do not believe the fact of the decedent's serious illness alters the legal consequence of his failure to cash the coupons. The receipt of the cash represented by the coupons was entirely within his own disposition and control. Moreover, an examination of Exhibit 2 filed by petitioner reveals that Loose often allowed bond interest coupons to lie uncashed for months or longer after maturity. Considering all the facts, we are impelled to the conclusion that the interest represented by the matured coupons here involved was constructively received*2919 by Loose before his death and that it represented taxable income to him, which should be accounted for by his personal representative. The cases urged by petitioner as authority to the contrary are all distinguishable on their facts. In , the amount of commissions involved was not determined until after the close of the year; while in , the question was whether interest due decedent at death, but uncollected, was, on collection, income to the estate or part of the corpus thereof. In , the issue was substantially identical with that in the Frank case, the same item having been taxed as income of the estate and part of the corpus. This issue is not presented in the instant case and the Board has heretofore indicated its concurrence with the conclusion of the Court of Claims that the same item may not be both income of an estate and also part of the corpus. The reasoning leading to this conclusion does not apply to income actually or constructively received by decedent before his death. What was taxable as income to*2920 *175 him in life, if in possession at death, becomes part of the corpus of his estate. As such it may properly be subject to the estate tax. The incidence of the income tax during decedent's lifetime and of the estate tax after his death on that which was income in the former and part of the corpus in the latter instance is not double taxation in the proper interpretation of that term, nor is there here the question of taxing to the decedent income received by the estate. The income here involved was received by Loose, within the meaning of the law, during his lifetime. Other cases cited by the petitioner are similary distinguishable. Judgment will be entered under Rule 50.