Rheinstrom v. Commissioner

KATHERINE S. RHEINSTROM, WHOSE TRUE NAME IS KATHERINE STEWART CLIFFORD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Rheinstrom v. Commissioner Docket No. 86035. United States Board of Tax Appeals 37 B.T.A. 308; 1938 BTA LEXIS 1054; February 9, 1938, Promulgated *1054 Petitioner created a trust and transferred to it certain property the income of which was to be distributed in the following proportions: 50 percent to her four children in equal amounts, 40 percent to petitioner, and 10 percent to be retained by the trustees in a reserve fund from which the trustees in their absolute discretion could also make payments to petitioner. Held, under authority of Seymour H. Knox,36 B.T.A. 630, petitioner made only one gift and was entitled to an exclusion of $5,000 from value of property given; held, further, petitioner is entitled to deduct the commuted value of reserved life interest of 40 percent of trust income, but not of 10 percent of income allocated to reserve fund, since she had no rights thereto, or, if she had rights, their value is not susceptible to calculation. Donald F. Pratt, Esq., for the petitioner. I. M. Tullar, Esq., for the respondent. KERN *308 This proceeding involves a deficiency asserted by respondent in gift taxes payable by petitioner in the calendar year 1934 in the sum of $1,419.81, and makes necessary an interpretation of a certain indenture of trust executed*1055 by petitioner on November 7, 1934. Petitioner contends that four separate gifts were created by this instrument, and that, therefore, in calculating the value of the trust property which is subject to gift taxes, there should be excluded the sum of $20,000. *309 Petitioner also contends that she retained a life interest in 50 percent of the income from the trust created by the indenture of trust. Respondent, on the other hand, allowed an exclusion of only $5,000 and also determined that the petitioner retained a life interest in only 40 percent of the income of the trust, and has, accordingly, arrived at the deficiency determined herein. Respondent has also determined that the value of the total assets placed in trust is the sum of $205,222.27 instead of the amount set out in petitioner's return, which was the sum of $205,192.55. Petitioner acquiesces in this increase in value amounting to $29.72, and consents to an entry of a decree of a deficiency based thereon. FINDINGS OF FACT. On November 7, 1934, Katherine S. Clifford, the petitioner herein, was a resident of Minneapolis, Minnesota. Subsequently she married one Allan Rheinstrom and became a resident of Massachusetts. *1056 At the time she made her gift tax return her name was Katherine S. Rheinstrom. Subsequent thereto, and prior to the filing of this petition, she was divorced, and by decree of the court granting the divorce she was permitted to and did resume her former name of Katherine S. Clifford. On November 7, 1934, petitioner executed and delivered an indenture of trust to Stewart H. Clifford, Frederic W. Clifford, and Harry S. Carson, as trustees. By the terms thereof petitioner irrevocably transferred to these trustees certain personal property, then having a value of $205,222.27, upon trust, the trustees to pay the net income therefrom to certain beneficiaries under terms hereinafter described. The trust thereby created was not to continue for a period longer than the lives of petitioner or other beneficiaries of the trust, or the survivor of all of them and 21 years thereafter. At the termination of the trust all of the principal of the trust then remaining and net income therefrom not dispersed was to be distributed to the beneficiaries or their descendants. The net income from the trust was to be paid by the trustees pursuant to the following provisions of the indenture of trust: *1057 (a) 12 1/2% of the entire net income of said trust shall be paid to Stewart H. Clifford, son of First Party [petitioner herein], during his lifetime. (b) 12 1/2% of the entire net income of said trust shall be held by said trustees for the benefit of Benjamin B. Clifford, son of First Party, but with absolute power and discretion in said trustees to pay over to said Benjamin B. Clifford only such part of this 12 1/2% of said net income as may to said trustees seem best, and with further power to said trustees at their option and in their discretion, to pay all or a portion of this 12 1/2% to the wife and/or children of Benjamin B. Clifford instead of to him, First Party's experience with said son Benjamin B. Clifford having convinced First Party that it would be more beneficial *310 to Benjamin B. Clifford if he is required to earn a substantial sum each year through his own efforts. If any part of this 12 1/2% of said net income is not paid over to said Benjamin B. Clifford and/or his wife and/or children, by said trustees, in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit of said Benjamin B. Clifford and/or*1058 his wife and/or children, in such securities as are authorized in paragraph "THIRD" hereof. (c) 12 1/2% of the entire net income of said trust shall be held by said trustees for the benefit of Arthur F. Clifford, son of First Party, but with absolute power and discretion in said trustees to pay over to Arthur F. Clifford only such part of this 12 1/2% of said net income as may to said trustees seem best, and with further power to said trustees at their option and in their discretion to pay all or a portion of this 12 1/2% to the wife and/or children of Arthur F. Clifford (in case Arthur F. Clifford and his wife, should have children) instead of to him, First Party's experience with said son Arthur F. Clifford having convinced First Party that it would be more beneficial to Arthur F. Clifford if he is required to earn a substantial sum each year through his own efforts. If any part of this 12 1/2% of said net income is not paid over to said Arthur F. Clifford and/or his wife and/or children (in case Arthur F. Clifford and his wife should have children) by said trustees in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit*1059 of said Arthur F. Clifford and/or his wife and/or children (in case Arthur F. Clifford and his wife should have children), in such securities as are authorized in paragraph "THIRD" hereof. (d) 12 1/2% of the entire net income of said trust shall be held by said trustees for the benefit of Katherine Clifford, daughter of First Party, but with absolute power and discretion in said trustees to pay over to said Katherine Clifford, daughter of First Party, only such part of this 12 1/2% of said net income as may to said trustees seem best. If any part of this 12 1/2% of said net income is not paid over to said Katherine Clifford by said trustees in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit of said Katherine Clifford in such securities as are authorized in paragraph "THIRD" hereof. (e) 40% of the entire net income of said trust shall be paid to said First Party for and during the term of her natural life, provided that if 40% of the net income from said trust in any year exceeds $5,000., then only $5,000. shall be paid to First Party in such year, and the excess thereof shall be accumulated and invested and reinvested*1060 by said trustees in such securities as are authorized in paragraph "THIRD" hereof, and held by them as a reserve fund with the same discretionary powers and duties as are specified in the case of the fund provided for in subdivision (f) of this paragraph "SECOND". In case said First Party should marry subsequent to the execution and delivery of this instrument, and in case thereby a husband, not divorced, of First Party, should survive First Party, then on and after the date of the death of First Party, 1/3rd of this 40% of the entire net income from said trust shall be paid to such husband not divorced, if any, of First Party, for and during the term of his natural life, provided that if 1/3rd of 40% of the net income from said trust in any one year after the death of First Party, exceeds $1500., then only $1500 shall be paid in such year to such husband not divorced, if any, of First Party, and the excess thereof shall be accumulated and invested and reinvested by said trustees in such securities as are authorized in paragraph "THIRD" hereof, and held by them as a reserve fund, with the same discretionary powers and duties as are specified in the case of the fund provided for in*1061 subdivision (f) of this paragraph *311 "SECOND"; and the other 2/3rds of this 40% of the entire net income from said trust, so long as such husband, not divorced, if any, shall live, and the whole of this 40% of the entire net income from said trust after the death of such husband, if any, or in case such husband, if any, shall not survive First Party, shall be paid as follows: 1/4th thereof shall be paid to Stewart H. Clifford, son of First Party, during his lifetime. 1/4th thereof shall be held by said trustees for the benefit of Benjamin B. Clifford, son of First Party, but with absolute power and discretion in said trustees to pay over to said Benjamin B. Clifford only such part of this 1/4th share as may to said trustees seem best, and with further power to said trustees, at their option, and in their discretion, to pay all or a portion of this 1/4th share to the wife and/or children of Benjamin B. Clifford instead of to him. If any part of this 1/4th share is not paid over to said Benjamin B. Clifford and/or his wife and/or children by said trustees in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit of*1062 said Benjamin B. Clifford and/or his wife and/or children in such securities as are authorized in paragraph "THIRD" hereof. 1/4th thereof shall be held by said trustees for the benefit of Arthur F. Clifford, son of First Party, but with absolute power and discretion in said trustees to pay over to said Arthur F. Clifford only such part of this 1/4th share as may to said trustees seem best, and with further power to said trustees at their option and in their discretion, to pay all or a portion of this 1/4th share to the wife and/or children of Arthur F. Clifford (in case Arthur F. Clifford and his wife should have children), instead of to him. If any part of this 1/4th share is not paid over to said Arthur F. Clifford and/or his wife and/or children (in case Arthur F. Clifford and his wife should have children), by said trustees in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit of said Arthur F. Clifford and/or his wife and/or children (in case Arthur F. Clifford and his wife should have children) in such securities as are authorized in paragraph "THIRD" hereof. 1/4th thereof shall be held by said trustees for the*1063 benefit of Katherine Cliford, daughter of First Party, but with absolute power and discretion in said trustees to pay over to said Katherine Clifford only such part of this 1/4th share as may to said trustees seem best. If any part of this 1/4th share is not paid over to said Katherine Clifford by said trustees in the exercise of their judgment, then said trustees shall invest and reinvest said unpaid part for the benefit of said Katherine Clifford in such securities as are authorized in paragraph "THIRD" hereof. (f) The other 10% of the entire net income from said trust shall be accumulated and invested and reinvested by said trustees in such securities as are authorized in paragraph "THIRD" hereof, and held by them as a reserve fund, with absolute power and discretion in said trustees to pay over to First Party, during her lifetime, such part, if any, of this 10% of the entire net income of said trust, and accumulations, if any, thereon, as may to said trustees seem best, and with absolute power and discretion in said trustees, after the death of First Party, to pay over to the children of First Party, or to their successors in interest as hereinafter provided, such part, if*1064 any, of this 10% of the entire net income of said trust and accumulations, if any, thereon, as may to said trustees seem best, such payment, if any, to First Party's children or to their successors in interest as hereinafter provided, to be made so that none of First Party's children, or their successors in interest as hereinafter provided, shall receive more than 1/4th thereof. *312 From a statement of the income and expenses of this trust covering the period from November 7, 1934, to April 6, 1937, the date of an audit preceding the hearing, it appears that each of the beneficiaries named in the indenture of trust was paid during this period the entire amount distributable to him or her according to its terms. The entire 40 percent of the net income payable to petitioner was paid to her, and during the period from November 7, 1934, to April 6, 1937, it aggregated the sum of $12,907.94. During that same period the income of the trust which was allocated to the so-called 10 percent reserve fund account (created by subparagraph (f) quoted above) amounted to $3,227.05. In 1935 the trustees paid to petitioner from this account the sum of $446.62 in order to enable her to*1065 pay Federal gift taxes. In 1936 the trustees paid to petitioner from this account the sum of $1,100.61 in order to permit her to pay the expenses incident to her divorce case. On April 6, 1937, there was a balance in this account of $1,679.82. One of the trustees testified that he was familiar with the way petitioner lived, and with her financial condition, and further testified that he anticipated constant expenditures from that fund would be made for the benefit of petitioner. OPINION. KERN: The first question involved in this proceeding is whether, in calculating the value of the property which forms the corpus of the gift made by petitioner to the trust established by her and subject to tax under the Revenue Act of 1932, as amended by the Revenue Acts of 1934 and 1935, there should be excluded the sum of $20,000, as petitioner contends, or, as respondent contends, the sum of $5,000. The pertinent section of the act, section 504 of the Revenue Act of 1932, is set out in the margin. 1 The contention of the petitioner is based upon the argument that since there are four beneficiaries under the trust instrument (in addition to the petitioner herself), there are four gifts, *1066 and, therefore, there should be four exclusions of $5,000 each, or a total of $20,000. In this case there was a gift of one corpus to one trust by virtue of one trust instrument. Although there were four beneficiaries, there was but one transfer made by the petitioner, which was to the trust itself. We must, therefore, conclude on the authority of previous decisions that but one gift was made, and only $5,000 may be excluded. *313 . Cf. ; affd., *1067 ; . Petitioner also contends that she retained a life interest in 50 percent of the income of the property given to the trustees and that the respondent erred in considering that she retained a life interest in only 40 percent of the trust income. The contention of the petitioner is based on the argument that, although 10 percent of the income of the trust is to be held by the trustees as a reserve fund pursuant to section (f) of the second article of the trust indenture, set out in our findings of fact, supra, to be accumulated and invested by them, the trustees do have the authority in their absolute discretion to pay any part of this income to petitioner during her life, as may seem best to the trustees; and, therefore, the petitioner has a reserved life interest in such part of the income of the trust the commuted value of which should be deducted from the present value of the corpus of the gift to the trust in the same way as was deducted the value of her life interest in the 40 percent of the income of the trust provided for by section (e) of the second article of the trust indenture. *1068 The deduction of her commuted life interest in the 40 percent has been allowed by the respondent. Despite some ambiguity in the brief, it is not our understanding that petitioner makes a contention that any part of the corpus of the trust should be exempt from the gift tax under article 3 of Regulations 79, because of a power reserved by her to alter the trust, for an examination of the trust indenture discloses no such power. Nor does the petitioner have any legal or equitable right to any distribution to her of any part of the 10 percent of the income which is subject to the provisions of section (f) of the second article of the trust indenture. She can only hope that the trustees, in their discretion, will make some distribution therefrom to her in the future as they have done in the past on two occasions. Even though we assume that petitioner has some right to this part of the income of the trust, she has nothing which may be valued according to any formula, and, therefore, no deduction can be made in addition to the deduction of the value of her reserved life interest in 40 percent of the trust income. Cf. *1069 ; . Judgment will be entered for the respondent. Footnotes 1. SEC. 504. NET GIFTS. (a) GENERAL DEFINITION. - The term "net gifts" means the total amount of gifts made during the calendar year, less the deductions provided in section 505. (b) GIFTS LESS THAN $5,000. - In the case of gifts (other than of future interests in property) made to any person by the donor during the calendar year, the first $5,000 of such gifts to such person shall not, for the purposes of subsection (a), be included in the total amount of gifts made during such year. ↩