Swanston v. Commissioner

ROBERT SWANSTON, EXECUTOR, ESTATE OF GEORGE SWANSTON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Swanston v. Commissioner Docket No. 21268. United States Board of Tax Appeals 18 B.T.A. 379; 1929 BTA LEXIS 2067; November 29, 1929, Promulgated *2067 C. E. McLaughlin, Esq., for the petitioner. Frank T. Horner, Esq., for the respondent. VAN FOSSAN *379 In this proceeding redetermination is asked of a deficiency in estate taxes amounting to $35,203.17, error being alleged in the inclusion in the taxable estate of the entire community property of decedent and his wife. By amended answer respondent asks to increase the deficiency by $510.83 on account of interest paid petitioner by the Commissioner when an erroneous refund of part of the tax was made. FINDINGS OF FACT. The facts were stipulated as follows: It is hereby stipulated by and between the parties to the above entitled action, that George Swanston was a citizen of the United States and a resident of Sacramento, Calif.; that George Swanston *380 died on the 3d day of July, 1923, and that at the time of his death he was a resident of the County of Sacramento, State of California; that Jennie E. Swanston was the wife of George Swanston and that the marriage relation continued up to the date of the decedent's death; that, with the exception of 4,499 shares of the capital stock of C. Swanston & Son, valued at $659,643.38, all of*2068 the rest and residue of the estate of George Swanston was the community property of George Swanston and Jennie E. Swanston; that Robert Swanston, son of George Swanston, deceased, was the duly appointed, qualified and acting executor of said estate; that, within the period prescribed by law, Form 706, return for Federal estate tax, was filed on behalf of said estate with the collector of internal revenue at San Francisco, Calif.; that on September 24, 1924, the Federal estate tax shown due on said return, amounting to the sum of $41,381.96, was paid; that on July 20, 1925, a refund of Federal estate tax was made to the estate of George Swanston, deceased, based upon the Commissioner's audit of said return under date of February 25, 1925, for the sum of $10,393.17 principal, on which $510.83 interest was also paid to the estate by the Bureau of Internal Revenue; that the Commissioner, in making said refund, specifically exempted the community property of the surviving wife of the decedent from estate tax; that, pursuant to the deficiency letter of the Commissioner dated September 17, 1926, the Commissioner has reversed the petition and redetermined the deficiency in the estate tax on*2069 said estate to be $35,203.17, and included the entire value of the community interest of the surviving wife, holding that said community interest should be included as a part of said estate subject to tax. OPINION. VAN FOSSAN: The first question presented, whether the wife's share of community property is properly included in determining the taxable estate, was decided adversely to petitioner in ; affirmed by the ; certiorari denied by the United States Supreme Court, October 21, 1929. The request of the Commissioner that the deficiency be increased by inclusion of an amount equal to the interest paid by the Commissioner to petitioner at the time of making the erroneous refund of part of the tax paid, was considered in , and therein decided adversely to Commissioner's contention. The request is denied. Decision will be entered for the respondent in the amount of the deficiency appealed from.