Longyear v. Commissioner

JOHN M. LONGYEAR, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Longyear v. Commissioner Docket Nos. 47117, 56027, 62410. United States Board of Tax Appeals 28 B.T.A. 1086; 1933 BTA LEXIS 1050; August 15, 1933, Promulgated *1050 1. Petitioner and his divorced wife effected a settlement whereby petitioner, in lieu of alimony, delivered to the wife a note for $150,000 and agreed that a portion of his share of a trust created by his father's will should stand as security for the note. Held, that payments made to the wife in satisfaction of the note are taxable to petitioner as part of his distributive share of the trust estate. 2. Petitioner irrevocably assigned to trustees for the benefit of his children a portion of his interest in the trust created by his father's will. Held, that petitioner had divested himself of all interest in and control over the portion so assigned, and payments made under the assignment to the trustees for the children are not taxable to him. J. F. Dammann, Esq., for the petitioner. I. Graff, Esq., for the respondent. VAN FOSSAN *1087 In these proceedings, which were duly considered for hearing and report, the petitioner requests redetermination of deficiencies in income taxes for the years 1925, 1926, 1927, and 1929 in the respective amounts of $2,688.52, $1,546.31, $96.21, and $4,980.27. The sole issue is whether or not certain*1051 income distributed by the trustees of the estate of the petitioner's father to the petitioner's divorced wife and their two children is taxable to the petitioner. The facts were stipulated. From the stipulation and the exhibits attached thereto we find the facts as follows: FINDINGS OF FACT. John M. Longyear, the petitioner's father, who was a resident of Marquette County, State of Michigan, died testate on May 28, 1922. His last will and testament was duly admitted to probate by the probate court of the County of Marquette, State of Michigan. The residue of decedent's estate was directed to be placed in trust for the purpose of collecting rents, issues and profits, with the power in the trustees to invest and reinvest, and to sell the corpus, with directions to distribute the income as well as the proceeds from the sale of property, share and share alike to decedent's children, of whom petitioner was one. It was provided in the will as follows: 17. If at the time of my death any of my said sons shall have a wife me surviving, with whom he is living in loving terms, I direct and authorize my said Executors and Trustees to pay to such wife so long as she and my said*1052 sons are living as husband and wife one-half (1/2) of the sums herein directed to be paid to such son. At the time of decedent's death petitioner was married but was not living with his wife, Elizabeth B. Longyear, on "loving terms" as that phrase is used in decedent's will. At that time petitioner and his wife had two children, namely, John M. Longyear, III, who was about eight years of age, and Marion Longyear, who was less than one year of age. On or about November 1, 1922, the petitioner executed in Mexico and delivered to Elizabeth B. Longyear, his wife, an instrument of *1088 assignment, hereinafter referred to as the Mexican assignment. By this instrument the petitioner assigned to his wife for her support and the support and education of their two children a one-half part of "whatever sums of money may now or hereafter at any time be due or coming to me from the estate of my father, John M. Longyear, deceased." This assignment states among other things that it was executed "in order to carry out as fully as may be, the wishes of my father, John M. Longyear, deceased, expressed in writing, but not incorporated in his last will," and that the instrument was executed*1053 in consideration thereof and in further consideration of "my duty to my children." Thereafter for a while during 1923 and a part of 1924 payments were made by the trustees of the estate of John M. Longyear under the Mexican assignment to the assignees named therein. In October 1923, a suit for divorce was filed in the State of Nevada wherein the petitioner was plaintiff and cross-defendant and Elizabeth B. Longyear was defendant and cross-plaintiff. On December 20, 1923, petitioner and his wife entered into a written agreement in the State of Nevada (hereinafter referred to as the Nevada agreement) which by its terms canceled the Mexican agreement. The Nevada agreement recites in part that it is the intention of the parties to settle all their property rights and to provide for the custody, maintenance, and support of their children, and also to provide for the future comfort, maintenance, and support of Elizabeth B. Longyear. In order to carry out the purposes of the agreement, petitioner agreed to and did execute an assignment whereby he assigned to each of his two children a one-eighth interest and to his wife a one-fourth interest "in whatever sums of money or other property" *1054 might be due or coming to him from the estate of his father. On December 22, 1923, a decree in favor of Elizabeth B. Longyear was entered by the Nevada court, in the suit entered as heretofore stated. This decree dissolved the marriage between the petitioner and Elizabeth B. Longyear and approved the agreement entered into December 20, 1923, settling the property rights of the parties and providing for the support, maintenance, education, custody, and guardianship of the minor children hereinbefore named. Some time after the Nevada decree was entered the executors and trustees of the estate of the decedent, on advice of counsel, questioned the validity of the assignments made by petitioner and refused to make any further payments under them. Thereupon on July 7, 1924, Elizabeth B. Longyear, in her individual capacity and as guardian of the minor children, filed a bill in equity in the circuit court of Marquette County, Michigan, against the trustees of the estate and *1089 others, asking a decree of the court holding the assignments valid and enforcing the terms thereof, and also attacking a provision of the decedent's will. Pending the determination of the action*1055 in the circuit court of Marquette County, the trustees of the estate of John M. Longyear, deceased, from time to time in the course of their administration of such estate, and as they made distributions provided for by the decedent's will, deposited in a special account in bank the sums in question in such action. These sums were deposited in the name of "John M. Longyear, Jr. or one-half for Elizabeth B. Longyear individually and one-half as guardian for John M. Longyear, III and Marion Longyear as their interests may appear." On December 29, 1925, while the suit in the circuit court of Marquette County was pending, the parties thereto, including the executors and trustees of decedent's estate, and Elizabeth B. Longyear, individually, and as guardian for the minor children, entered into a written agreement in settlement of the various issues raised by the pleadings in the action. This agreement was duly filed in the circuit court of Marquette County, became a part of the records of the pending cause and was duly approved by the court. The court, in its decree, recited in effect that the agreement of December 29, 1925, was a just and reasonable settlement of "certain good-faith*1056 controversies" arising out of the administration of the estate of John M. Longyear, deceased, under his will, and thereupon decreed that all the controversies involved in the action "be and hereby are forever settled, compromised, and adjusted in accordance with the terms of said agreement." The settlement agreement defines the phrase "the family share" of John M. Longyear, Jr., wherever used therein, as including all the interest of John M. Longyear, Jr., and of his estate and of his widow, children (born and unborn), and "other issue" and of the husband or wife of any child of John M. Longyear, Jr., in the estate of John M. Longyear, deceased, "including such interest which John M. Longyear, Jr. may take by reason of the death of Mary B. Longyear or the death of any of his brothers or sisters or their issue." As to Elizabeth B. Longyear, the petitioner's divorced wife, the settlement agreement provides for the payment to her by the trustees out of the special fund deposited in bank, as hereinbefore referred to, the sum of $12,500 and a further sum equal to interest at the rate of 6 percent per annum upon $150,000 from the first day of July 1925, to the effective date of the agreement. *1057 The agreement also provided for the execution and delivery by the petitioner to Elizabeth B. Longyear of a note for $150,000 bearing date as of the effective date of the agreement, together with interest at the rate of *1090 6 percent per annum and payable on or before the first day of January 1945. The agreement was to be made a part of the note by reference on the face of the note. Under the terms of the settlement agreement "there shall stand as security" for the note "a one-fourth part or portion" of "the family share of John M. Longyear, Jr. in the estate of John M. Longyear, deceased" and all distributions from such one-fourth part from and after the effective date of the agreement and until full payment of the principal of the note are to be paid to the holder of the note and applied first to the payment of any accrued interest thereon and then on account of any balance of the indebtedness. Elizabeth B. Longyear, on her part, released any and all rights she had or claimed or might thereafter claim under the will of John M. Longyear, deceased, or under the assignments hereinbefore referred to. As to each of the two children, the settlement agreement provided that*1058 one eighth of the "family share" of petitioner should be placed in trust and that the trustees thereof should pay to the guardian of the children during their minority, such sums as should be necessary for their education, support, and maintenance, but never less than $3,000 in any one year. Thereafter and until the children reached the age of twenty-five years the trustees were to pay them the income from the trusts created, with the right, however, to retain and add to the capital of the trust fund such amounts as in the discretion of the trustees shall not be needed for their maintenance, support, and education. Each trust was to terminate when the children respectively reached the age of twenty-five years, and thereupon they were to receive the capital amount of each trust, with provision made for cross remainders in the event of the death of either before termination of the trusts. The settlement agreement states that the rights and interest given thereby to Elizabeth B. Longyear, John M. Longyear, III, and Marion Longyear are in lieu of all rights under the Nevada and Mexican assignments. At December 29, 1925, the date of the settlement agreement, the special fund deposited*1059 in bank as hereinbefore referred to amounted to $57,250 with interest. It was distributed to Elizabeth B. Long-year and the trustees of John M. Longyear, III, and Marion Longyear in accordance with the terms of the settlement agreement. Various payments of interest on the $150,000 note and on account of the principal thereof have also been made directly to the holder of the note by the executors and trustees of John M. Longyear, deceased, and various distributions have been made by these executors and trustees to the trustees of the two minor children. All of such *1091 payments and distributions were made in accordance with the provisions of the settlement agreement. The distributions from the special fund referred to included a payment to Elizabeth B. Longyear of $4,510.95 as interest on the note for $150,000 from July 1, 1925, to December 30, 1925. Other payments of interest on the note for $150,000 made by the trustees under the terms of the settlement agreement were $5,812.33 during 1926, $5,237.07 during 1927, and $4,800.28 during 1929. The distributive shares of Elizabeth B. Longyear, individually, and of Elizabeth B. Longyear and Frederick Burrall as trustees of*1060 John M. Longyear, III, and Marion Longyear, in the income of the estate of John M. Longyear for the calendar years 1925, 1926, 1927, and 1929, under the terms of the settlement agreement of December 29, 1925, were, respectively, $24,729.73, $17,223.28, $9,993.81, and $34,495.26. OPINION. VAN FOSSAN: The issue to be determined is whether or not the payments made by the trustees of John M. Longyear, deceased, to the petitioner's divorced wife and to the guardians and trustees of the two minor children named in the findings of fact are taxable as income of the petitioner. It is not contended that petitioner's wife or children acquired any property right or any right to income under the will of Longyear, senior. It is clear that the wife did not. The sums paid to her and to the trustees for the children were paid pursuant to the agreement of December 29, 1925, and the court decree directing settlement of the pending suit in accordance with that agreement. There had been two previous agreements between petitioner and Elizabeth B. Longyear - the Mexican and Nevada agreements - but these were superseded by that entered into in Michigan and approved by the court in that state, *1061 which court we take it, in view of that being the place of probate of the will, properly had jurisdiction in the matter. In our opinion the agreement to pay Elizabeth B. Longyear certain sums was merely an assignment of income which in the first instance was income to petitioner and taxable to him, as in ; affd., ; ; affd., ; ; . Petitioner did not divest himself of his property right in any part of the corpus of his father's estate through the creation of a trust fund or otherwise. He agreed merely that a portion of his share of the estate "shall stand as security for the said note" that he executed. The situation here is very much like that in , where the taxpayer entered into a separation agreement with his wife, agreeing to pay her a specified sum annually and in order *1092 that the payments "shall be secured" he deposited certain securities with a bank. We*1062 said: The situation is to be distinguished from one where a trust fund is set up for the benefit of the wife and the husband has no interest in the income from the fund. The agreement which we are here considering was no more than one for maintenance and support, with collateral deposited as security for the payment. We are accordingly of the opinion that the interest received from the bonds held under the agreement between petitioner and his wife and the bank constitutes income to the petitioner. Nor can any of the payments made to petitioner's former wife be deducted from his gross income as interest on indebtedness. While, as heretofore stated, the Michigan agreement superseded the earlier ones, they are referred to therein and show clearly that the payments were intended by the parties to be in lieu of alimony. Alimony is not founded in contract as is an ordinary debt, but grows out of an obligation imposed on the husband. It is an award to the wife in the enforcement of a marital duty. For this reason it was held in *1063 , that proceedings to collect alimony could not be enjoined by a bankruptcy court. See also ; . The interest payments in question are payable as a part of the agreement made in lieu of an alimony award and, therefore, are not deductible as interest on an indebtedness. The distributive shares of the children are in a different category. They arose under trusts created by petitioner whereby he irrevocably alienated in each case a one-eighth part of all his rights, title, and interest in and to his "family share" of the estate, with provisions that the portion so assigned to the trustees should go to the children upon termination of the trusts and with further provisions for cross-remainders in the event of the death of either child. By the assignment in trust petitioner divested himself of all interest in the portion assigned, had no control over, and could not repossess either the corpus or income. Under these conditions, whether the payments made to the trustees for the children were out of corpus or income of the decedent's estate, *1064 they were not taxable to petitioner. ; ; . Reviewed by the Board. Decision will be entered under Rule 50.