Harber v. Whelchel

Hines, J. (After stating the foregoing facts.) Where a father by deeds conveys to his children his lands, reserving to himself the full use and control of the same for and [603] during his natural life, and postponing the enjoyment thereof by his children until after his death, such deeds vest the present legal title in the children, but postpone the use, enjoyment, and possession of the grantees until after the death of the grantor. This court has held 'that these deeds vested the title in presenti in the grantees. Harber v. Harber, 152 Ga. 98 (108 S. E. 520). This being so, are these lands subject to the inheritance tax imposed by the law of this State? They are so subject, whether the question is to be determined by the inheritance-tax act of Aug. 19, 1913 (Acts 1913, p. 91), or by the act of Aug. 19,1919 (Acts 1919, p. 58). By the very letter of both acts, they are subject to'the inheritance tax. The language of the act of 1913 is “ all property within the -jurisdiction of this State, real and personal, and every estate and interest therein, whether belonging to the inhabitants of this State, or not, which shall pass on the death of a decedent by .will or by the laws regulating descents and distributions, or by deed, grant, or gift, except in eases of a bona fide purchase' for a full consideration, made, or intended to take effect in possession or enjoyment, after the death of the grantor or donor,” shall be subject to this tax. Practically this is the language of the act of 1919. By this act, " all property . . which shall pass on the death of the decedent . . by deed, grant, or gift, except in cases of a bona fide purchase for a full consideration, made, or intended to take effect in possession or enjoyment, after the death of the grantor or donor,” is made subject to this tax. Where the property passes by will or descent, it is subject to this tax. Where it passes by deed, grant, or gift, with immediate possession and enjoyment, it is not subject to this tax; but where it so passes, except in the one exception named, but the gift or grant is made or intended to take effect in possession or enjoyment after the death of the grantor or donor, it is subject. 37 Cyc. 1567, 1568. It is not a tax on property, but is in the nature of a tax upon the right to receive or dispose of property by devise or descent, or by gift or grant intended to take effect in possession or enjoyment after the death of the grantor or donor. Martin v. Pollock, 144 Ga. 605 (87 S. E. 793); Farkas v. Smith, 147 Ga. 503 (94 S. E. 1016). The tax will attach immediately on the acquisition of title by devise or descent, or it may not attach until the acquisition of possession and the commencement of use and enjoyment, in [604] cases of deeds, grants, or gifts, with use and possession reserved. So we are of the opinion that these lands, under the terms of the deeds by .which they were given to the grantees, are subject to the inheritance tax of this State. It is insisted that the estate of the testator was appraised for the purpose of collecting this tax, and the tax paid, and that for this reason it can not be again appraised and an additional inheritance tax imposed and collected. If all of the property of the testator subject to this tax had been appraised and the tax paid, that would have been the end of the matter, unless changed upon review or appeal as provided by the act of Aug. 15, 1921 (Acts 1921, p. 203). But it appears from the allegations of the plaintiffs’ petition that only the personal estate of the deceased was apr praised, and that the only tax paid was that due on such personalty. The lands of testator conveyed by these deeds were not appraised, and the inheritance tax due upon them was not paid. The inheritance-tax law contemplates the assessment of all the property of the decedent subject to that tax. The omission to assess these lands and to collect the inheritance tax on their assessed value by the proper officers of the county does not relieve the taxpayer from such tax. No such easy method of paying taxes has yet been promulgated by law. Ga. R. &c. Co. v. Wright, 124 Ga. 596 (53 S. E. 251); Douglas v. McCurdy, 154 Ga. 814 (115 S. E. 658). The chancellor did not err in dismissing the petition on demurrer and in declining to grant a temporary injunction. Judgment affirmed. All the Justices ' concur.