Latham v. Commissioner

HELEN LATHAM, ADMINISTRATRIX, ESTATE OF J. H. LATHAM, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Latham v. Commissioner Docket No. 21479. United States Board of Tax Appeals 16 B.T.A. 48; 1929 BTA LEXIS 2655; April 17, 1929, Promulgated *2655 L. L. Hamby, Esq., for the petitioner. F. T. Horner, Esq., for the respondent. TRAMMELL *48 This is a proceeding for the redetermination of a deficiency in estate tax in the amount of $1,479.93. The errors alleged are that *49 the respondent excessively valued two tracts of real estate and improperly included in the gross estate the value of certain properties included in a trust executed by the decedent on April 27, 1921. FINDINGS OF FACT. The petitioner is a duly appointed, qualified administratrix of the estate of J. H. Latham, deceased, who died November 13, 1922. At the time of the death of decedent he owned a tract of 3,058 acres of land in Mitchell County, Texas, and a tract of 732 acres of land in Erath County, Texas. The tract in Mitchell County, Texas, was returned in the estate-tax return at a valuation of $25 an acre or an aggregate valuation of $76,450, and the tract in Erath County was returned at a valuation of $12,162. The actual value of the tract of land in Mitchell County was $45,870 and the tract in Erath County had an actual value of $10,980. The excessive valuation was placed upon these tracts of land by*2656 the decedent's second wife on account of the benefits which she might derive from excessive valuation in a cash settlement with the estate on account of her community property interest therein and such valuation did not represent the actual value of the property. The decedent, by an instrument executed April 2, 1921, created a trust on certain property, the value of which has been determined by the respondent to be $61,419.21 as of the date of decedent's death and the respondent has determined that the transfer was in contemplation of death. The petitioner does not question the valuation of the property so determined. This property was transferred in contemplation of death. OPINION. TRAMMELL: With respect to the valuation of the two tracts of land involved, the testimony is convincing beyond any reasonable doubt that the property was excessively valued in the return and that the tract of 3,058 acres in Mitchell County, Texas, did not have an actual value in excess of $45,870, and the 732 acres in Erath County, Texas, did not have an actual value at the time of the death of decedent in excess of $10,980. These valuations should be used in the determination of the estate*2657 tax. With respect to the property transferred in trust, the evidence introduced does not overcome the presumption created by the statute that the transfer was in contemplation of death. The transfer was made within two years of the decedent's death and was for a material part of his estate. The evidence fails to disclose a consideration for the transfer. *50 The principal contention of the petitioner with respect to this trust was that it, having been created prior to the effective date of the Revenue Act of 1921, is controlled by the decision of , and under that decision should not have been included in the gross estate of the decedent. As we pointed out, however, in the case of , the Nichols case did not relate to a transfer made in contemplation of death but only the transfers which were made previous to the taxing statute which were to take effect at or after death. The Nichols case, therefore, is not authority for the contentions advanced by the petitioner here. It is our opinion that the transfer involved here has not been shown not*2658 to have been made in contemplation of death and under our decision in , should be included in the gross estate of the decedent. Judgment will be entered under Rule 50.