Faulkner v. Commissioner

MARY DUPONT FAULKNER, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Faulkner v. Commissioner Docket No. 92815. United States Board of Tax Appeals 42 B.T.A. 1019; 1940 BTA LEXIS 913; October 22, 1940, Promulgated *913 In Mary duPont Faulkner v. Commissioner (C.C.A., 1st Cir.), 112 Fed.(2d) 987, it was held that a gift made by the petitioner in 1935 to the Birth Control League of Massachusetts was made to a charitable organization and hence was a legal deduction from gross income in the donor's income tax return. The Board held in an opinion at 41 B.T.A. 875, that the same gift was subject to gift tax. The opinion of the court in the income tax case is dispositive of the issue presented in the gift tax case. The opinion at 41 B.T.A. 875, is accordingly modified to permit the deduction from gross gifts made in 1935 of the $6,000 in question. Robert C. McKay, Esq., for the petitioner. Davis Haskin, Esq., for the respondent. SMITH *1019 SUPPLEMENTAL OPINION. SMITH: The Board promulgated its opinion in the above entitled proceeding on April 18, 1940, . One of the questions in issue was whether a contribution to the Birth Control League of Massachusetts made by the petitioner in 1935 in the amount of $6,000 was subject to gift tax. *914 In a companion case, Docket No. 95624, the question in issue was whether this same gift was a legal deduction from the petitioner's gross income for 1935 under section 23(o) of the Revenue Act of 1934. The Board held in that case, in a memorandum opinion entered July 11, 1939, that the gift was not a legal deduction from gross income under section 23(o) of the Revenue Act of 1934. The petitioner took an appeal from the adverse decision of the Board in that case to the , which reversed the decision of the Board and held that the gift was a gift to a charity under section 23(o) of the Revenue Act of 1934 and hence was a legal deduction from gross income. The Board is advised by counsel for the respondent that no writ of certiorari will be asked for in that case. Both parties are agreed that if the $6,000 gift is a legal deduction from gross income under section 23(o) of the Revenue Act of 1934, it is likewise a legal deduction from gross gifts under section 505(a)(2)(B) of the Revenue Act of 1932, as amended by section 517(a) of the Revenue Act of 1934. He question in issue in this proceeding*915 is ruled by the opinion of the appellate court in the above cited case. The petitioner is entitled to the deduction from gross gifts of the $6,000 in question in the determination of the *1020 amount of the net gifts subject to gift tax. The opinion of the Board at , is modified accordingly. Reviewed by the Board. Decision will be entered under Rule 50. MURDOCK dissents.