States v. Wells, 283 U. S. 102. In the Wells case the Supreme Court said: The statutory description embraces gifts inter vivos, despite the fact that they are fully executed, are irrevocable and indefeasible. The quality which brings the transfer within the statute is indicated by the context and manifest purpose. Transfers in contemplation of death are included within the same category, for the purpose of taxation, with transfers intended to take effect at or after the death of the transferor. The dominant purpose is to reach substitutes for testamentary dispositions and thus to prevent the evasion of the estate tax. Nichols v. Coolidge, 274 U. S. 531, 542, 47 S. Ct. 710, 71 L. Ed. 1184, 52 A. L. R. 1081; Milliken v. United States, 283 U. S. 15, 51 S. Ct. 324, 75 L. Ed. decided March 2, 1931. 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. * 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. 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." 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. [Italics supplied.] In the Wells case the transfers were found not to have been motivated by the state of the decedent's health at the time of the gifts. but that "the immediate and moving cause of the transfers was the carrying out of a policy, long followed by decedent in dealing with his children of making liberal gifts to them during his lifetime" and intended by the donor "to accomplish some purpose desirable to him if he continues to live." There, the decedent had given much of his property to his children during his lifetime to see how they would handle it, and, as he said, "I will then know when my time is up what I ought to do with the balance." Here, there is no evidence of such a policy on the part of the decedent, who retained possession and management of and received the proceeds from the property in controversy. When asked if she and the decedent discussed, at the time the deeds were executed, "any reason why they should not be recorded and the properties and its management turned over to the children?," Mrs. Fish said: I think it was a matter of pride with Mr. Fish; he was quite a well known man; he was mayor of Bakersfield for eight years * he did not want it done. The evidence does not overcome the presumption of the correctness of the respondent's determination that the gifts were made in contemplation of death. Although we have found that the gifts or transfers in September 1924, were made in contemplation of death, and subject to the estate tax, it is nevertheless necessary to determine whether or not the gift tax has been properly levied. In so far as material hereto, the Revenue Act of 1924, as amended by the Revenue Act of 1926, is as follows: SEC. 319. For the calendar year 1924. and each calendar year thereafter, a tax equal to the sum of the following is hereby imposed upon the transfer by a resident by gift during such calendar year of any property wherever situated, whether made directly or indirectly * *. [The rates applicable are set forth in section 324 (a) of the Revenue Act of 1926, which amended this section.] SEC. 320. If the gift is made in property, the fair market value thereof at the date of the gift shall be considered the amount of the gift, ** * SEC. 321. In computing the amount of the gifts subject to the tax imposed by section 319, there shall be allowed as deductions: (a) In the case of a resident- (1) An exemption of $50,000. SEO. 322. In case a tax has been imposed under section 319 upon any gift, and thereafter upon the death of the donor the amount thereof is required by any provision of Part I of this title to be included in the gross estate of the decedent then there shall be credited against and applied in reduction of the estate tax, which would otherwise be chargeable against the estate of the decedent under the provisions of section 301, an amount equal to the tax paid with respect to such gift; The gifts in question were made after the enactment of the Revenue Act of 1924 and are therefore subject to the gift tax imposd by Part II of Title III of that act. Untermyer v. Anderson, 276 U. S. 440; Blodgett v. Holden, 276 U. S. 594; Bromley v. McCaughn, 280 U. S. 124; Harold T. White et al., Executors, 15 B. T. A. 1417; Victor Weichman, 20 B. T. A. 616. On brief, the petitioners admit that the property transferred to the six children is subject to the gift tax, but contend that, in effect, Mrs. Fish purchased the property transferred to her for an adequate and valuable consideration, to wit, the relinquishment of her interest in the community property and her consent to the gifts to the children. They state that "it is our contention that the value of the interest of the husband should be measured by one-half the value of all the community property." Similar contentions with respect to an alleged purchase by the wife were of no avail in Title Insurance & Trust Co. v. Goodcell, supra, where the court refused to limit the incidence of the estate tax to one-half of the community property, because at the husband's death property rights were brought into being or ripened for the survivor which before could not be exercised." Likewise here, by the gifts, Mrs. Fish acquired property rights "which before could not be exercised." 66 In Blethen v. Pacific Mutual Life Ins. Co., 243 Pac. 431, 434, the Supreme Court of California said: The husband is the owner of the community property, and the interest of the wife therein is but a mere expectancy. Van Maren v. Johnson, 15 Cal. 308, 311; Tolman v. Smith, 24 P. 743, 85 Cal. 280; Spreckels v. Spreckels, 48 P. 328, 116 Cal. 339, 36 L. R. A. 497, 58 Am. St. Rep. 170; Spreckels v. Spreckels, 158 P. 537, 172 Cal. 775; Winchester v. Winchester, 165 P. 965, 175 Cal. 391; Estate of Brix, 186 P. 135, 181 Cal. 667; Dargie v. Patterson, 169 P. 360, 176 Cal. 714; Roberts v. Wehmeyer, 218 P. 22, 191 Cal. 601. Certain statutory limitations for the protection of the wife have, however, been placed upon his power of disposal. Thus, by section 172 of the Civil Code, the husband is expressly prohibited from giving away any part of the community personal property without the written consent of the wife. This restriction on the husband's power of disposal does not, however, vest any interest in the community property in the wife. Spreckels v. Spreckels, 158 P. 537, 172 Cal. 775. If a gift is made by the husband in contravention of the statute, the gift is not a nullity. On the contrary, the property vests in the donee, subject to a right on the part of the wife to have one-half of the gift revoked. If, after the gift is made, the wife gives her consent, the requirements of the statute are fulfilled, and no further action is required to make it a valid and effective gift. Spreckels v. Spreckels, 158 P. 537, 172 Cal. 775; Dargie v. Patterson, 169 P. 360, 176 Cal. 714; McDougald v. First Federal Trust Co., 199 P. 11, 186 Cal. 243, 245. In short, a gift of community property by the husband during his lifetime without the consent of his wife is not void but voidable. While the wife's interest in community property under the laws of California is more than an expectant estate, it does not ripen into a vested estate until her husband's death. Talcott v. United States, supra; In re Brix Estate (California), 186 Pac. 135. In Paduveris v. Paris, (California), 1 Pac. (2d) 986, 988, it is said: That the wife may relinquish to her husband her interest in the community property, which is thereby converted into the separate property of the husband, is too well settled to require discussion. See Sanguinetti v. Sanguinetti, 51 Cal. App. 347, 196 Pac. 799, and cases there cited; Estate of Brix, 181 Cal. 667, 186 Pac. 135. Upon the death of the decedent "one-half of the community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of the decedent" (sec. 1401, Civil Code of California, 1927, Deering). By joining in the conveyance in September 1924, Mrs. Fish relinquished her right to receive one-half of the community property upon the death of Mr. Fish, thereby effectively converting the community property into the separate property of the husband (Paduveris v. Paris, supra), who eo instanti made gifts of the same property to Mrs. Fish and their children. By those gifts Mrs. Fish acquired an interest vesting in praesenti, instead of an interest vesting in futuro which she theretofore had. Her consent to the gifts was not the equivalent of a purchase of one-half of the property, but a relinquishment of her interest in the other half, from which petitioners argue that only the portion of the property given to the children is subject to the gift tax, as per their concession. If there was a purchase by Mrs. Fish, it was of property of the agreed value of $150,000 for a consideration of her future interest in that same property-in other words, by the transaction she received a present vested interest in lieu of an interest that would have vested upon the death of her husband. There being no evidence of the value, if any, of the consideration which she is alleged to have paid for the property received from Mr. Fish in September 1924, we can not determine what, if anything, was the consideration therefor. Furthermore, the decedent could have made a valid gift of community property to his wife without her consent. Logan v. Thorne (Cal.), 269 Pac. 626. In the circumstances, we hold that the decedent made gifts on September 23, 1924, of property of the agreed value of $300,000, and that such property is subject to the gift tax imposed by the Revenue Act of 1924, as amended by the Revenue Act of 1926. In accordance with section 322 of the Revenue Act of 1924, the amount of the gift tax should be credited against the estate tax. Reviewed by the Board. Judgments will be entered under Rule 50. P. R. PETERSON, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. R. B. MOORE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Docket Nos. 32419, 32579. Promulgated March 24, 1933. Where individuals carrying on a business in a partnership permit the net earnings of the partnership to be applied against a corporation's indebtedness for which they are liable as endorsers, held, their distributive shares of such net earnings are properly included in computing their net incomes. Neil E. Larkin, Esq., for the petitioners. C. A. Ray, Esq., for the respondent. These proceedings, duly consolidated, are for the redetermination of deficiencies in the petitioners' income tax for 1923 as follows: P. R. Peterson. R. B. Moore.. Petitioner Docket No. Deficiency 32419 $714.59 32579 1,048.05 The sole issue, common to both proceedings, is raised by the following allegation of error: (a) In determining the petitioner's net income for 1923, the Commissioner has erroneously added to the net income reported one-half of the earnings re ported by the Glenn Colusa Sheep Company. FINDINGS OF FACT. The petitioners are residents of the State of California. During and prior to the taxable year 1923, each petitioner owned 45 per cent of the capital stock of the Moore-Peterson Company, (hereinafter referred to as the Corporation), a California corporation engaged in the business of sheep raising and farming. Following the slump of 1920 and 1921, the Corporation was in bad shape financially and unable to discount its notes or to finance its operations. The San Francisco Cattle Loan Company had been financing the operations of the Corporation and agreed to continue to finance. these operations under a new arrangement. A new financing company, known as the California Cattle Loan Company, was organized and the petitioners "set up the Glenn-Colusa Sheep Company (hereinafter referred to as the Partnership). The Corporation and the Partnership were doing business in 1923 and each filed an income tax return. The Partnership return of income was filed on Form 1065. This return showed gross sales in the amount of $711,321.26 and a net income of $24,562.69. This return, which was subscribed and sworn to by "R. B. Moore (Member of Partnership)," contains the following statement: This partnership is owned 50% by R. B. Moore of Willows, California an 50% by P. R. Peterson of Sites, California. The same parties own practically all of the capital stock of Moore Peterson Co. a corporation of California. This partnership was formed for the express purpose of financing operations, the profits from which were used to retire debts and pay losses of the Moore-Peterson Co. The Total amount of income shown by this return was paid to R. B. Moore and P. R. Peterson for the account of Moore Peterson Co. and will be reported as income on the return of the Moore Peterson Co. We believe that this places the return of both the corporation and the partnership in proper form but return showing consolidation of accounts could be filed if necessary, the result being the same. |