Weiden v. Commissioner

CHARLES R. WEIDEN AND HERMANN J. WEIDEN, AS EXECUTORS OF THE ESTATE OF ROBERT WEIDEN, DECEASED, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Weiden v. Commissioner Docket No. 70763. United States Board of Tax Appeals 31 B.T.A. 138; 1934 BTA LEXIS 1155; August 31, 1934, Promulgated *1155 The value of real estate acquired by decedent and his wife as tenants by the entirety prior to 1916 is to be included in gross estate under the Revenue Act of 1926. Third National Bank & Trust Co. v. White, 45 Fed.(2d) 911; affd., 287 U.S. 577. L. S. Pendleton, Esq., for the respondent. ARUNDELL OPINION. ARUNDELL: This proceeding involves estate taxes determined by the Commissioner in the sum of $7,319.48. The case has been submitted on the pleadings and a signed stipulation of facts. The decedent died on January 9, 1931. The question of law presented is the right to include in decedent's gross estate the value of certain real property located in the State of New York which was owned by decedent and his wife as tenants by the entirety. The property in question was acquired between 1893 and 1908. The governing statute is section 302(e) of the Revenue Act of 1926. It is petitioner's contention that the Federal Government may not tax the transfer of such property where the acquisition occurred prior to the passage of the first Federal estate tax act of 1916. The constitutionality of the levy has now been definitely*1156 established. ; ; ; affd., ; . Petitioners contested the taxation of the same property by the taxing authorities of New York under a statute similar to the Federal estate tax act, and in a decision by the Court of Appeals of New York, rendered November 21, 1933, , the constitutionality of the state statute was sustained and the entirety property included in decedent's estate in determining the amount of the New York State transfer tax. Decision will be entered for the respondent.