Harnischfeger v. Commissioner

MARIE E. HARNISCHFEGER, WALTER HARNISCHFEGER, AND RENE VON SCHLEINITZ, EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF HENRY HARNISCHFEGER, DECEASED, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Harnischfeger v. Commissioner Docket No. 69636. United States Board of Tax Appeals 31 B.T.A. 224; 1934 BTA LEXIS 1125; October 3, 1934, Promulgated *1125 Gifts made by the decedent to members of his family and others within two years of the date of his death were not made in contemplation of death. Louis Quarles, Esq., James T. Guy, Esq. and Richard S. Doyle, Esq., for the petitioners. J. R. Johnston, Esq., for the respondent. SMITH *225 This proceeding involves a deficiency in estate tax of the estate of Henry Harnischfeger, deceased, in the amount of $42,410.88. The principal issue is whether certain gifts made by the decedent within two years prior to his death were made in contemplation of death. There is an alternative issue as to whether certain of these gifts are deductible from the gross estate as charitable gifts. FINDINGS OF FACT. The decedent, Henry Harnischfeger, a resident of Wisconsin, died suddenly and unexpectedly on November 15, 1930, at the age of 75 years. He left surviving him a widow, Marie E. Harnischfeger, age 59, two adult children, a son, Walter Harnischfeger, and a daughter, Frieda von Schleinitz, and five grandchildren. The decedent left a large estate, appraised by the Probate Court of Milwaukee County, Wisconsin, exclusive of certain gifts made within*1126 two years prior to his death, at $1,902,420.81. The value of the gifts in question at the date of death was appraised by the Probate Court at $1,934,505. The decedent came to this country at the age of 16 from his birthplace, Salmuenster, Germany. Soon thereafter he conducted a small machine shop, which later developed into the Harnischfeger Corporation. The business was first conducted as a partnership but was incorporated in 1911, at which time the decedent executed his last will and testament. It was reorganized in 1924, at which time $1,000,000 par value of preferred stock was issued and the common stock was increased by the amount of $500,000. At the time of this reorganization, or soon thereafter, the petitioner executed a new will. For the years 1922 to 1929, inclusive, the earnings and cash dividends of the Harnischfeger Corporation were as follows: Cash Cash dividends dividends on Year Net earnings on common stock preferred stock — 1922 — $191,506.61 $60,000.00 ----------------- — 1923 — 776,390.53 150,000.00 ----------------- — 1924 — 508,937.86 90,000.00 ----------------- — 1925 — 729,889.15 105,000.00 $70,000.00 — 1926 — 782,861.88 ---------------- 70,000.00 — 1927 — 836,247.26 ---------------- 72,100.00 — 1928 — 949,788.94 ---------------- 72,100.00 — 1929 — 1,240,547.82 135,000.00 86,430.75 *1127 A large part of the earnings had been retained in the business as working capital. In the spring of 1929 some investment bankers suggested to the decedent that the time was propitious to reorganize the Harnischfeger Corporation by selling common stock to the public. The stock market financing was a popular and approved method of financing *226 among manufacturers at that time. The current liabilities of the corporation were approximately $2,500,000, $1,225,000 of which was owed to banks. The decedent worked on this problem in the spring of 1929 with the investment bankers and by September had worked out definite reorganization plans which provided that the common stock should be changed to no par value, the capital stock increased, and about 25 percent of the common stock sold to the public at an amount which would net the company $2,000,000. This plan would enable the company to pay up its banking indebtedness and furnish it with working capital. This was done in the fall of 1929. The bank debts were liquidated and additional working capital acquired. The stock was listed on the Chicago Stock Exchange. The corporation was freed of debt and the decedent was able*1128 to liquidate a personal indebtedness of $150,000. As a part of the plan of reorganization the bankers insisted that the management of the business remain with the decedent and that the common stock be put on a regular dividend basis of 45 cents a share per quarter. After the Harnischfeger Corporation was recognized and the stock listed on the Chicago Stock Exchange, the common stock was owned as follows: Shares Henry Harnischfeger 143,472 Walter Harnischfeger 39,357 Frieda von Schleinitz 34,107 Rene von Schleinitz 5,250 Others 77,814 --------- Total outstanding 300,000 The secretary of the Harnischfeger Corporation pointed out to decedent that as a result of the new dividend policy he would have an annual income of more than $300,000 and much in excess of his needs and that he would be required to pay large state and Federal income taxes on account of the dividends receivable on his stock. The decedent also discovered that by this transaction he had lost personal control of the Harnischfeger Corporation as he had left only 143,472 out of 300,000 shares of common stock. Upon the advice of counsel and as a means of regaining control*1129 of the business the decedent caused to be organized in October 1929 a holding company known as the Harnischfeger Investment Co., with two classes of stock - class A, which had voting rights, and class B, without voting rights - and the members of the decedent's family were asked to turn in their shares of Harnischfeger Corporation stock, common and preferred, in exchange for the nonvoting class B stock in the Harnischfeger Investment Co. The decedent's daughter, *227 Frieda von Schleinitz, at first declined to do so, upon the advice of her husband, Rene von Schleinitz, and her attorney. She later agreed to the plan on the promise of the decedent to make her a gift of additional stock of the Investment Co. All of the class A voting stock and a substantial amount of class P stock of the Harnischfeger Investment Co. were issued to and held by the decedent. Thereafter and on the dates named the decedent made the following gifts of stock in the Harnischfeger Corporation and the Harnischfeger Investment Co. and also gifts of money to the municipality of Salmuenster, germany, all of which gifts were made within two years prior to the decedent's death: 1. To Marie E. Harnischfeger, wife, Dec. 28, 1929, 600 shares Harnischfeger Corp. common $8,400.00 2. Marie E. Harnischfeger, Jan. 27, 1930, 612 shares Harnischfeger Inv. Co. class B stock 1,108,711.00 3. Marie E. Harnischfeger, Jan. 31, 1930, 2,280 shares Harnischfeger Corp. common 31,920.00 4. To Walter Harnischfeger, son, Dec. 14, 1929, 5,000 shares Harnischfeger Corp. common 70,000.00 5. Walter Harnischfeger, Dec. 28, 1929, 1,150 shares Harnischfeger Corp. common 16,100.00 6. Walter Harnischfeger, Jan. 27, 1930, 128 shares Harnischfeger, Investment Co. Class B 231,940.00 7. Walter Harnischfeger, Jan. 31, 1930, 3,420 shares Harnischfeger Corp. common 47,880.00 8. To Frieda von Schleinitz, daughter, Dec. 28, 1929, 600 shares Harnischfeger Corp. common 8,400.00 9. Frieda von Schleinitz, Jan. 27, 1930, 186 shares Harnischfeger Inv. Co. class B 336,985.50 10. Frieda von Schleinitz, Jan. 31, 1930, 2,280 shares Harnischfeger Corp. common 31,920.00 11. To Harnischfeger Foundation, Inc., Dec. 28, 1929, 350 shares Harnischfeger Corp. common 4,900.00 12. Harnischfeger Foundation, Inc., Jan. 31, 1930, 900 shares Harnischfeger Corp. common 12,600.00 13. To Salmuenster, Germany (school) Mar. 21, 1930: Cash 25,000.00 14. August 26, 1930 8,000.00 ------------- Total 1,942,756.50 *1130 These gifts were valued by the respondent at the date of decedent's death at $1,951,800.50 and included in the decedent's gross estate in his determination of the deficiency herein. The total value of the decedent's gross estate, including the value of the gifts, was determined to be $3,851,646.32. For some time prior to 1929 the decedent had contemplated a plan of providing for some of the superannuated employees of the Harnischfeger Corporation. With this in view he caused to be organized, on December 23, 1929, the Harnischfeger Foundation, Inc. *228 It was organized exclusively for charitable purposes and for the benefit of employees of the Harnischfeger Corporation. It was the decedent's plan that the Foundation should ultimately be endowed with 15,000 shares of the common stock of Harnischfeger Corporation and that the shares should be donated by other members of his family as well as by himself. To carry out this purpose the decedent upon organization of the Foundation converyed to it 350 shares on December 28, 1929, and 900 shares on January 31, 1930 (items 11 and 12 above), and on the same dates he gave to his wife and two children 10,330 additional shares*1131 (items 1, 3, 5, 7, 8, and 10 above), with the understanding that they would convey them to the Foundation within the next few years. He likewise during the same years intended to give to the Foundation 3,420 shares of Harnischfeger Corporation common stock, to make up the total of 15,000 shares. With this object in view the three lots (items 3, 7, and 10 above) were conveyed to the donees on January 31, 1930, in the form of four certificates for each member of the family to transfer one to the Foundation in each of the four succeeding years. He likewise caused to be issued to himself four certificates representing 3,420 shares which he should give to the Foundation during the same period. The gift to Walter Harnischfeger (item 4 above) on December 14, 1929, consisting of 5,000 shares of Harnischfeger Corporation common stock, was made in order to enable his son to have a larger interest in the Harnischfeger Corporation. It was the decedent's intention that Walter Harnischfeger should eventually succeed him as head of the Harnischfeger Corporation. The primary purpose of the decedent in making gifts of stock of the Harnischfeger Investment Co. to his wife and two children*1132 (items 2, 6, and 9) was that he and each of the three donees might receive approximately one fourth of the dividends which would accrue to the Harnischfeger Investment Co. upon the shares of stock of the Harnischfeger Corporation held by that company. He believed that his income tax liabilities to the State of Wisconsin and to the United States would be greatly reduced thereby. The gifts of Harnischfeger Investment Co. class B stock made by the decedent to his wife, son, and daughter on January 27, 1930 (items 2, 6, and 9 above), were conveyed by a written assignment reading in part as follows: The undersigned, Henry Harnischfeger, of Milwaukee, Wisconsin, recognizing that his present income largely exceeds his needs, and being desirous that his wife and children shall have larger independent incomes for their own personal use, in consideration of love and affection, hereby conveys and transfers the number of shares of common stock of Harnischfeger Investment Company, a Delaware corporation, to the several persons herein named in the amounts set after their respective names. *229 In 1928 the decedent was in Europe and visited Salmuenster, Germany, the city where he*1133 was born, and promised to give it $50,000 to enable it to build a new school. The cash gifts of March 21, 1930, and August 26, 1930 (items 13 and 14), were made upon such pledge. In 1929 the decedent's daughter, Frieda, was ill. Her husband, Rene von Schleinitz, was also ill and was forced to retire from business. It was planned that they should reside in Germany. The decedent was much concerned about the health of both of them. He desired that they have sufficient income to maintain their family in Germany. The gift of Harnischfeger Investment Co. stock to Frieda on January 31, 1930, was in part prompted by such consideration. He also desired at the same time that Walter Harnischfeger should have an equal interest with Frieda and his gift to Walter on January 27, 1930, of 128 shares of Harnischfeger Investment Co. stock was prompted by that consideration. The decedent was in excellent health up to the day of his death. He was a tall man, weighed 190 pounds, was strong and vigorous, exercised every day, and usually walked through the shops of the Harnischfeger Corporation twice daily, which inspection required from one and one half to two hours a trip. He was the active*1134 head of the business until the day of his death and was present at the office and plant almost every day except when away on vacation or business trips. The only serious illness the decedent ever had was in 1901, when he had a nervous breakdown from which he recovered in a few months. For years prior to his death he was never confined to his bed with illness except once in a while for a day or two when sick with a cold. At the time the gifts in question were made in December 1929 and January 1930 decedent's health was excellent and he was planning a trip to Europe. On February 7, 1930, in anticipation of his European trip, he made his will. A modification in his will was necessitated by the reorganization of the Harnischfeger Corporation, since thereafter he did not own the number of shares in that corporation which he had owned prior thereto, but instead owned shares of stock in the Harnischfeger Investment Co. The will left control of the Harnischfeger Corporation with Walter Harnischfeger, provided trust funds for the grandchildren, and left the residue of his estate, something over $400,000, to his wife, Marie E. Harnischfeger. The decedent was examined by Dr. W. J. *1135 Winneman on February 1, 1929, May 8, 1929, and April 25, 1930. The first examination was just before decedent made a trip to Mexico, when he was vaccinated; the second was upon his return from that trip; and the third was just before the decedent left on a trip to Europe. The doctor pronounced the decedent to be in excellent health. He found no *230 heart involvement at all and his blood pressure was within normal limits. He told the decedent that he had every reason to expect that he would live out the normal expectancy of a man of his years. The decedent was of a cheerful disposition, a hard worker all his life, and never spoke of retiring from business. In 1928 he told Hermann Haehle, an old and respected employee, that "We are good for a good many years yet, both of us", and definitely agreed to make a trip with him to Hawaii in 1931. Decedent sailed for Europe in May 1930 with his wife and grandson and remained there about four months. While in "germany decedent visited the Mann plant, a Diesel engine plant, and other manufacturing plants in which he was interested. Upon his return from Europe in the late summer of 1930 he continued as acting head of the*1136 corporation until the day of his death. On November 13, 1930, two days before his death, the decedent attended a meeting of the board of directors of the Metal Trades Association and took an active part in that meeting. He was in a jovial frame of mind, quite happy, and appeared to be in good health, both mentally and physically. On November 14, 1930, the day before his death, the decedent attended a long conference and meeting at the plant of Harnischfeger Corporation with several persons with reference to a patented automatic garage system which the company had in process of development. He appeared to be in as good health that day as he had been in years. He retired about ten o'clock that evening. The next morning about six o'clock he was found by Mrs. Harnischfeger in the bathroom dead. A doctor was called in and gave as the principal cause of death "myocardial insufficiency" which came upon him suddenly and, as a second cause not related to the first, "senile degeneration", which means the wear and tear on the body of a long life. The above described gifts of stock in the Harnischfeger Corporation and the Harnischfeger Investment Co. made by the decedent within two*1137 years prior to the date of his death were not made in contemplation of death. OPINION. SMITH: The principal issue in this proceeding is whether the gifts made by the decedent within two years prior to the date of his death, which were valued by the respondent at the date of death at $1,951,800.50, were made in contemplation of death and are therefore to be included in the gross estate for estate tax purposes. The deficiency involved herein was determined under the provisions of section 302 of the Revenue Act of 1926, which, so far as pertinent to the question at issue, reads as follows: *231 SEC. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated - * * * (c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, except in case of a bona fide sale for an adequate and full consideration in money or money's worth. Where within two years prior to his death but after*1138 the enactment of this Act and without such a consideration the decedent has made a transfer or transfers, by trust or otherwise, of any of his property, or an interest therein, not admitted or shown to have been made in contemplation of or intended to take effect in possession or enjoyment at or after his death, and the value or aggregate value, at the time of such death, of the property or interest so transferred to any one person is in excess of $5,000, then, to the extent of such excess, such transfer or transfers shall be deemed and held to have been made in contemplation of death within the meaning of this title. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death but prior to the enactment of this Act, without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title. [Italics supplied.] The second sentence of subdivision (c) italicized above was held unconstitutional in *1139 . Thereafter section 302(c) of the Revenue Act of 1926 was amended by an act approved March 3, 1931, and by section 803(a) of the Revenue Act of 1932, by which amendment the conclusive termination was eliminated. The amendments were not, however, declared to be retroactive. The respondent has determined, however, that the gifts in question were made in contemplation of death and his determination is prima facie correct. Whether the gifts under consideration in this proceeding were made in contemplation of death is a question of fact which must be determined from the evidence before us, and the burden of proving that they were not so made rests upon the petitioners. In , it was stated with regard to the meaning of the phrase "in contemplation of death": * * * It is recognized that the reference is not to the general expectation of death which all entertain. It must be a particular concern, giving rise to a definite motive. The provision is not confined to gifts causa mortis, which are made in anticipation of impending death, are revocable, and are defeated if the donor*1140 survives the apprehended peril. * * * The statutory description embraces gifts inter vivos, despite the fact that they are fully executed, are irrevocable and indefeasible. * * * The dominant purpose is to reach substitutes for testamentary dispositions and thus to prevent the evasion of the estate tax. * * * As the transfer may otherwise have all the indicia of a valid gift inter vivos, the differentiating factor must be found in the transferor's motive. Death must be "contemplated," that is, the motive which induces the transfer must be of the sort which leads to testamentary disposition. * * * *232 As the test, despite varying circumstances, is always to be found in motive, it cannot be said that the determinative motive is lacking merely because of the absence of a consciousness that death is imminent. It is contemplation of death, not necessarily contemplation of imminent death, to which the statute refers. It is conceivable that the idea of death may possess the mind so as to furnish a controlling motive for the disposition of property, although death is not thought to be close at hand. Old age may give premonitions and promptings independent of mortal disease. *1141 Yet age in itself cannot be regarded as furnishing a decisive test, for sound health and purposes associated with life, rather than with death, may motivate the transfer. The words "in contemplation of death" mean that the thought of death is the impelling cause of the transfer, and while the belief in the imminence of death may afford convincing evidence, the statute is not to be limited, and its purpose thwarted, by a rule of construction which in place of contemplation of death makes the final criterion to be an apprehension that death is "near at hand." If it is the thought of death, as a controlling motive prompting the disposition of property, that affords the test, it follows that the statute does not embrace gifts inter vivos which spring from a different motive. * * * It is common knowledge that a frequent inducement is not only the desire to be relieved of responsibilities, but to have children or others who may be the appropriate objects of the donor's bounty, independently established with competencies of their own, without being compelled to await the death of the donor and without particular consideration of that event. There may be the desire to recognize special*1142 needs or exigencies or to discharge moral obligations. The gratification of such desires may be a more compelling motive than any thought of death. * * * There is no escape from the necessity of carefully scrutinizing the circumstances of each case to detect the dominant motive of the donor in the light of his bodily and mental condition, and thus to give effect to the manifest purpose of the statute. A careful weighing of the evidence in this proceeding leads us to the conclusion that the gifts were not made in contemplation of death. It is quite apparent that the reorganization of the Harnischfeger Corporation in 1929 was not prompted by any thought of death on the part of the decedent. The time was propitious for the selling of stock in the corporation to the public. The corporation was heavily in debt to the banks. It needed additional funds. The decedent also owed an estate $150,000 for assets purchased from it. By the sale of shares of stock to the public the decedent temporarily lost control of the corporation. His attorneys suggested to him the organization of Harnischfeger Investment Co. for the purpose of regaining control of the corporation in the manner*1143 pointed out by the attorneys. This was done. The decedent's only daughter and his son-in-law were ill and they were going to move to Germany to reside there permanently. The decedent wished them to have independent incomes. It was pointed out to the decedent that after the reorganization of the Harnischfeger Corporation he would be subject to heavy income *233 taxes upon his income, and also how these income taxes could be minimized by making gifts of the stock to his wife and children. This appears to us to have been the predominant motive of the decedent in making the gifts of stock of Harnischfeger Investment Co. to his wife and children. Consonant with the thought the decedent discovered that the income tax liabilities of each member of his family would be further minimized by making donations of stock to the Harnischfeger Foundation, Inc. It was the decedent's thought that his own income tax liability and that of his wife and two children might be minimized each year for a perod of four years by donations of a portion of the stock of the Harnischfeger Corporation, which he proposed should be given ultimately to the Foundation. The gifts of the Harnischfeger*1144 Corporation common stock to the amount of 10,330 shares were therefore made to the decedent's wife and his two children with this sole purpose in view. It was not the decedent's intention that the donees of this stock should retain it permanently. Where the dominant motive for making gifts is to escape income tax liability, such gifts are not includable in the gross estate. ; ; ; . As a further motive for making the gifts the decedent wished to insure financial independence for his wife and children. Such gifts have been held not includable in the gross estate for tax purposes. ; ; ; *1145 ; affd., . The facts here are similar to those in ; certiorari denied, . Up to within a short time of his death the decedent in this proceeding took an active interest in the management of his business, was mentally and physically alert, was cheerful and optimistic, and was still planning for the future. The decedent there was 83 years of age at the date of death and was not in as good health comparatively as the decedent in this proceeding at the time of his death at the age of 75 years. The court held, affirming the , that the gifts of approximately one half of his large estate to his son were not made in contemplation of death. We have set forth above the detailed facts concerning the decedent's state of health and mind for a period of years preceding his *234 death, during which the gifts in dispute were made. All of the evidence indicates that the decedent was in the best of health and spirits at the time the gifts were made and that he had given very little thought*1146 to the eventuality of death. On the contrary he continued up to the very day of his death to take an active part in his business and to plan for its future expansion and development. His death came very suddenly from an unexpected cause. While it is true that in reorganizing his business and dividing the interests among the other members of his family he was "putting his house in order", as the respondent contends, there is no indication whatever that what he was doing was in contemplation of death. The things done are all quite as reasonably to be associated with purposes relating to life as those relating to the eventuality of death. The respondent relies strongly in his contention in this case upon the holding of the Supreme Court of Wisconsin in ; . In that case it was held that gifts and transfers here under consideration were taxable in the decedent's gross estate for purposes of the estate tax levied by the State of Wisconsin. After a lengthy discussion of the meaning of the phrase "in contemplation of death" with reference to the case*1147 of , the court stated in conclusion as follows: It is earnestly contended that, since the deceased apparently enjoyed good health up to the time of his death, was cheerful and optimistic, was actively engaged in conducting a large industry, was making plans for industrial developments which involved new undertakings and enterprises, the presumption to which the statute gives rise was clearly overcome, and that it was affirmatively shown that the gifts were not in fact made in contemplation of death. This argument would be quite persuasive did it not appear that in the fall of 1929, and continuing into February of 1930, the deceased was engaged in carrying out extensive plans looking to the putting of his house in order. He was then nearly seventy-four years of age. He reorganized the Harnischfeger Corporation so that stock might be listed on the Chicago Stock Exchange and so that some of it might be sold to provide funds to liquidate his indebtedness. He organized the Harnischfeger Investment Company so that he and the trustees under his will might have unquestioned control of the corporation. He organized the Harnischfeger Foundation*1148 for the benefit of the employees of his company and provided for its permanent endowment out of his properties. He gave large gifts to his wife, who was then about seventy-six years of age, and also large gifts to his son and daughter, as well as substantial gifts to some of his faithful employees and to some of his other relatives. He made arrangements for giving $50,000 to his native village of Salmuenster for the purpose of founding a school, and finally, on February 9, he executed his will, which consisted of twenty typewritten pages, evidenced much thought and planning, but by which nothing was bequeathed directly to his son or daughter, and by which the residue of his estate, worth only about $440,000, was given to his wife. *235 While there is no testimony tending to show that the deceased had any premonition or promptings of death as distinguished from that ordinary expectation of death which every one entertains, or that he was conscious or had knowledge of any disease or other affliction, there is abundant evidence, as it seems to us, to support the inference that the gifts were made in contemplation of death. While the enjoyment of health, actively engaging*1149 in business, and the making of plans for the future may at times, and in certain cases, be very persuasive, they are not in any sense conclusive. Impelling motives or inducing causes, being subjective in nature, are not always easily discoverable. Without further discussion, it is our opinion that, under all of the circumstances, the conclusion of the county court may not be disturbed. We have given careful consideration to the well considered opinion of the Supreme Court of Wisconsin. It is to be noted, however, that the decision of that court was under a state statute whcih provided in part as follows: * * * Every transfer by deed, grant, bargain, sale or gift, made within two years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this section. The decision of the Probate Court of Milwaukee County, which was affirmed by the Supreme Court of the State of Wisconsin, was made upon an entirely different record from*1150 that which is before us. The court apparently stresses the fact that in February 1930 the decedent made his will and bequeathed nothing thereby directly to his son or daughter. Apparently, as contended by counsel for the petitioners, that court was not in possession of the facts that the decedent had theretofore in prior years made wills and that the will executed in 1930 was necessitated by changes made in the ownership of his property. The decision of the state court has no binding effect on the Board. ; Upon the evidence we are constrained to hold that the gifts made by the decedent in 1929 and 1930 were not made in contemplation of death. Having reached this conclusion, it is not necessary to pass upon the alternative contentions of petitioners. Reviewed by the Board. Judgment will be entered under Rule 50. GOODRICH concurs in the result.