Jaynes v. Commissioner

CHARLES W. JAYNES, ALBERT L. POPE AND HENRY O. CUSHMAN, TRUSTEES U/W OF CHARLES P. JAYNES, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Jaynes v. Commissioner Docket No. 62503. United States Board of Tax Appeals 29 B.T.A. 259; 1933 BTA LEXIS 978; October 31, 1933, Promulgated *978 Under a testamentary trust the testator's two children were to receive income for life and upon their death the trust was to terminate, specific sums to be paid to each of their children, and the remainder to go to charity. The number of grandchildren living in the taxable year was not sufficient to exhaust the principal of the trust fund. Held, that, under the presumption of possibility of additional issue being born, it cannot be determined what amount, if any, will ultimately go to charity, and that no part of the profit from the sale of the trust corpus can be treated as permanently set aside for charitable purposes. Charles M. Rogerson, Esq., for the petitioners. E. L. Corbin, Esq., for the respondent. ARUNDELL *259 This proceeding is brought for the redetermination of a deficiency in income tax for the year 1929 in the amount of $2,500.41. Petitioners allege that respondent erred in refusing to allow a deduction *260 from trust income of an amount permanently set aside for charity. FINDINGS OF FACT. Petitioners are trustees under the will of Charles P. Jaynes, who died September 6, 1912. Decedent's will, which was*979 duly probated, created the trust now being administered by the petitioners herein, under the terms of which the income is to be paid to decedent's son and daughter during their lives. The will further provides with respect to the trust property that: Upon the decease of my said son or daughter then to pay the income that each at that time was entitled to receive to his or her children then surviving and if either leave no child then surviving to pay the share of income which that one was then entitled to receive, to the survivor of my son and daughter during his or her life time and upon the decease of the survivor to pay the income in equal shares to or for the benefit of any child of my son and of my daughter until the youngest surviving child that is my youngest grandchild living at the time of the death of the survivor of my son and daughter reaches or has reached the age of twenty one years when this trust shall finally terminate and at that time I direct the trustees or trustee to divide and pay over the entire trust fund with any accumulations of income undistributed as follows: Twenty five thousand dollars to each and every grandchild of mine then living and to the issue*980 of any deceased grandchild such issue together taking only twenty five thousand dollars to be equally divided between them and the remainder to divide among and pay over to the Corporations then existing named in paragraphs a to h inclusive in clause 2 of Section IV of this will and in the proportions there expressed and for the uses and purposes there set forth. The corporations referred to in the last quoted paragraph of the will are eight in number, and are conceded to be of the kind commonly known as tax exempt charitable organizations, gifts to or sums permanently set aside for which are deductible from income under the Federal income tax statute. Decedent left him surviving two children, Charles W. Jaynes, then 34 years of age, and Harriet A. Pope, then 36 years of age. Both were married and were, and are now, the only source of grandchildren of the decedent. The wife of Charles was the same age as he, and at the time of decedent's death they had two children, one seven and the other four years of age. These two were then, and are now, the only grandchildren of the decedent. No other children have since been born to Charles and his wife. Charles and his wife and two*981 children are still living. Harriet and her husband, both of whom are still living, have never had any children. *261 The value of the property comprising the corpus of the trust here involved was $391,940.82 at the time of the death of decedent, and $465,334.99 at December 31, 1929. During the year 1929 the petitioners realized a profit of $35,713.07 from the sale of stock and rights constituting a portion of the trust corpus. This sum the respondent has included in income of the trust. OPINION. ARUNDELL: Under the provisions of the testamentary trust administered by these petitioners, the income was to be paid to the decedent's two children for life, and upon the death of both the trust was to terminate and $25,000 of the corpus to be paid to each grandchild of the decedent, and the balance to specified charitable organizations. At the time of decedent's death the value of the trust corpus was $391,940.82, and in the taxable year, 1929, it was $465,334.99. The theory of petitioners is that only $50,000 of the corpus will ever be needed to pay the individual beneficiaries, hence the gain derived in 1929, being added to corpus, must eventually go to charity*982 and should be treated as permanently set aside for charitable purposes. The applicable statute, section 162 of the Revenue Act of 1928, permits the deduction from gross income of trusts of the part thereof that is "paid or permanently set aside for" charitable and similar organizations. At the time of decedent's death there were but two grandchildren, none have been born since, and those two are still living. In the taxable year 1929, decedent's son Charles, and the wife of Charles, were both 51 years of age. They were the parents of decedent's two grandchildren. Decedent's other child, Harriet, was married but has never had any children. In 1929 she was 53 years of age. The parties have stipulated that "in order that the principal shall be exhausted by payments [to the grandchildren] of $25,000 each, there must be sixteen more grandchildren" of the decedent. Petitioners rely on , to sustain their claim. That was an estate tax case where the testator provided for annuities, during the life of his three daughters, for every grandchild of his that might be born after his death, with remainder*983 over to charity. the executors of the estate, for the purpose of computing the value of the net estate, claimed deduction of a minimum amount which was certain to go to the charitable organizations. In calculating such amount recognition was given to the presumption of possibility of issue, regardless of age. Evidence was offered to show that there was no probability *262 of additional grandchildren of the testator, but the executors nevertheless assumed the possibility of five being born as a safe maximum. On this basis and taking into account other factors that might by any possibility reduce the charitable remainder, they arrived at an amount which they said would not be impaired even though grandchildren of the testator were "born with incredible rapidity and in improbable numbers," and which would, with reasonable certainty, go to charity. In our opinion in that case we alluded to the presumption in favor of possibility of issue and said that "if we had to determine just how many might possibly have been born, our problem would be too difficult for human judgment and knowledge." The petitioners here are asking as to solve the problem which in the cited case we confessed*984 was beyond our abilities. We are bound by the presumption of possibility of issue, cf. ; affd., ; , and we cannot say to what extent this should be carried, in point of number, to determine the portion of income for the taxable year that can be ascertained with reasonable certainty will remain for charitable purposes. Any attempt to determine the extent to which the trust fund may be depleted by the birth of additional children must necessarily depend entirely on a guess as to the number, and this would lead from the proper office of the presumption into the realm of pure speculation. The statute does not require any such venture. Cf. . In , we had the income tax sequel of the estate tax case reported under the same name at . In the income tax case, which has been affirmed on appeal, *985 , the executors claimed a deduction of at least the earnings of the amount of the fund which we determined in the estate tax proceeding to be the minimum deductible value for the remainder left to charity. We denied the deduction, saying in part: The appraisal of an apparently stable and liquid fund of securities for estatetax purposes is a far different matter from that of gauging the recurring yearly return from such a fund, from the viewpoint of the income tax thereon. The same thing may be said here, with full recognition of the posibility in that case of the invasion of corpus to pay annuities. We know not to what extent the corpus may be depleted by the contingencies ever present in the management of property. We are accordingly unable to find that any part of the income was "permanently set aside" for charitable uses within the meaning of the statute and the respondent's refusal to permit the deduction sought is affirmed. Decision will be entered for the respondent.