Greene v. United States, No. 539-53

No. 539-53 | Ct. Cl. | Mar 4, 1959

Lead Opinion

JoNES, Chief Judge,

delivered the opinion of the court:

Plaintiffs¹ seek a refund of taxes in the amount of $1,113,-937.37, plus interest thereon, which amount was assessed and paid by reason of the inclusion of certain United States 3% Panama Canal loan bonds in the gross estate of the decedent for Federal estate tax purposes. Plaintiffs base their claim on the ground that the plain language of the statute authorizing the issuance of these bonds and the language on the face of the bonds provide a broad and comprehensive tax exemption which necessarily includes Federal estate taxes.

These Panama Canal bonds were authorized by the act of August 5,1909 (36 Stat. 11,117), which provided in section 39 that:

* * * the bonds herein authorized shall be exempt from all taxes or duties of the United States, as well as from taxation in any form by or under State, municipal or local authority * * *.

On the face of the bonds appears the following language:

The principal and interest are exempt from all taxes or duties of the United States as well as .from taxation in any form by or under State, Municipal or local authority.

Plaintiffs argue that “all taxes” means all taxes, including Federal estate taxes; that “duties” is a term of art which includes Federal estate taxes, and that certain case law relied upon by the Government is either distinguishable or in error.

The Government construes the phrase “all taxes” to mean all taxes on the bonds themselves, and contends that the Federal estate tax is not a tax upon the property comprising the estate but is a tax upon the right to transfer such property at death. The language of section 810 of the Internal Revenue Code of 1939 which imposes a tax upon “the transfer of the net estate of every decedent”, and case law support the Government’s contention.

The earliest cases on this problem were Plummer v. Coler, 178 U.S. 115" court="SCOTUS" date_filed="1900-05-14" href="https://app.midpage.ai/document/plummer-v-coler-95284?utm_source=webapp" opinion_id="95284">178 U.S. 115, and Murdock v. Ward, 178 U.S. 139" court="SCOTUS" date_filed="1900-05-14" href="https://app.midpage.ai/document/murdock-v-ward-95285?utm_source=webapp" opinion_id="95285">178 U.S. 139, both decided in 1900. Plummer held that a Federal exemption “from taxation in any form by or under State, municipal or local authority” did not exempt certain 1870 Federal bonds from a State inheritance tax. Plaintiffs analyze Plummer as involving solely a constitutional problem, to wit, whether the right to regulate the passage of property at death is strictly within the powers reserved to the States, and as holding that the Federal Government cannot limit that power.

Murdock v. Ward, supra, held that a Federal exemption from “all taxes or duties of the United States” did not exempt these 1870 bonds from the 1898 Federal inheritance tax. Plaintiffs urge that the case is distinguishable because it involved an inheritance tax, a tax upon the right of the legatee or devisee to receive the property of the erstwhile owner, and not an estate tax which is a tax on one of the attributes of ownership; i.e., the right to transfer one’s property. Plaintiffs take the position that the Supreme Court, in Murdock v. Ward, supra, erred in placing reliance upon the Plummer case, which involved primarily a constitutional issue. In both cases, the rationale relied upon by the Supreme Court was that the inheritance tax was not a tax upon the bonds themselves, but a tax upon the transfer of the bonds. Plaintiffs urge that, in any event, the Supreme Court decided Murdock v. Ward, supra, erroneously because it failed to look to the legislative history of the 1870 bonds to see what Congress meant when it exempted the bonds from “all taxes or duties of the United States.” Both parties in the present litigation rely upon that same legislative history, and we shall discuss it later in this opinion.

Subsequent to the decisions in Plummer and Murdock, supra, the rationale that certain taxes, such as estate or gift taxes, are not taxes upon the property but merely taxes upon the right to transfer the property has been followed. U.S. Trust Co. v. Helvering, 307 U.S. 57" court="SCOTUS" date_filed="1939-04-17" href="https://app.midpage.ai/document/united-states-trust-co-v-helvering-103192?utm_source=webapp" opinion_id="103192">307 U.S. 57 (1939); Hamersley v. United States, 83 Ct. Cl. 687" court="Ct. Cl." date_filed="1936-11-09" href="https://app.midpage.ai/document/hamersley-v-united-states-1457413?utm_source=webapp" opinion_id="1457413">83 C. Cls. 687 (1936); Waud v. United States, 71 Ct. Cl. 567" court="Ct. Cl." date_filed="1931-04-06" href="https://app.midpage.ai/document/waud-v-united-states-6845237?utm_source=webapp" opinion_id="6845237">71 C. Cls. 567 (1931); Chase Nat. Bank v. United States, 278 U.S. 327" court="SCOTUS" date_filed="1929-01-02" href="https://app.midpage.ai/document/chase-national-bank-v-united-states-101366?utm_source=webapp" opinion_id="101366">278 U.S. 327 (1929); Greiner v. Lewellyn, 258 U.S. 384" court="SCOTUS" date_filed="1922-04-10" href="https://app.midpage.ai/document/greiner-v-lewellyn-99967?utm_source=webapp" opinion_id="99967">258 U.S. 384 (1922); New York Trust Co. v. Eisner, 256 U.S. 345" court="SCOTUS" date_filed="1921-05-16" href="https://app.midpage.ai/document/new-york-trust-co-v-eisner-99803?utm_source=webapp" opinion_id="99803">256 U.S. 345 (1921).

This distinction is clearly stated in the case of U.S. Trust Co. v. Helvering, supra, passing on whether the proceeds of a war risk insurance policy payable to the widow on the veteran’s death should be included in his gross estate for estate tax purposes, from which we quote, at page 60, the following:

* * * Exemptions from taxation do not rest upon implication.

An estate tax is not levied upon the property of which an estate is composed. It is an excise imposed upon the transfer of or shifting in relationships to property at death. The tax here is no less an estate tax because the proceeds of the policy were paid by the Government directly to the beneficiary; the taxing power was nevertheless exercised upon “the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.” In an analogous situation, federal bonds exempt by statute from all taxation have been held subject to a federal inheritance tax. And state inheritance taxes can be measured by the value of federal bonds exempted by statute from state taxation in any form.

The plaintiffs also insist that the holding in Murdock v. Ward, supra, has been qualified and limited in the case of Oklahoma Tax Commission v. United States, 319 U.S. 598" court="SCOTUS" date_filed="1943-06-14" href="https://app.midpage.ai/document/oklahoma-tax-commission-v-united-states-103869?utm_source=webapp" opinion_id="103869">319 U.S. 598 (1943), and in Landman v. United States, 103 Ct. Cl. 199" court="Ct. Cl." date_filed="1945-05-07" href="https://app.midpage.ai/document/landman-v-united-states-8589313?utm_source=webapp" opinion_id="8589313">103 C. Cls. 199 (1945). A careful reading of these decisions will show clearly that they were exceptions to the general rule and are not applicable to the instant case. They involve tax-exempt Indian land. Indians being wards of the Government, an entirely different and more liberal rule applies to them.

The only other exception involves tax exemptions for aliens. The legislative history shows that Congress did not intend to subject alien holders of the exempt bonds to Federal estate taxes. Jandorfs Estate v. Commissioner, 171 F.2d 464" court="2d Cir." date_filed="1948-12-21" href="https://app.midpage.ai/document/jandorfs-estate-v-commissioner-of-internal-revenue-1487714?utm_source=webapp" opinion_id="1487714">171 F. 2d 464 (1948); Pennsylvania Co. for Banking & Trusts v. United States, 185 F.2d 125" court="3rd Cir." date_filed="1950-11-13" href="https://app.midpage.ai/document/pennsylvania-co-for-banking--trusts-v-united-states-225954?utm_source=webapp" opinion_id="225954">185 F. 2d 125 (1950).

As plaintiffs point out, no case involving these Panama Canal bonds has been decided and none of the cases cited would be controlling if we could find that Congress, in enacting the tax exemption provision in these Panama Canal bonds, did, in fact, intend to relieve the bonds from Federal estate taxes. In support of its argument that such was the intention of Congress, plaintiffs maintain (1) that the legislative history of the prototype of the exemption provision here involved shows such an intention, and (2) that the historical background of the word “duties” shows that the word refers to “death duties” such as estate taxes and that therefore Congress in using that word intended to exempt these bonds from the payment of estate taxes.

The legislative history of the statute authorizing the issuance of the Panama Canal bonds is, as both parties concede, unenlightening as to the particular issue involved here. By way of analogy the parties rely upon the legislative history accompanying the act of July 14,1870 (16 Stat. 272), which authorized the first issue of Federal bonds exempt from “all taxes or duties of tbe United States,” and which, exemption provision is the prototype of the exemption clause involved in this suit. The exemption clause in the 1870 act was the provision construed by the Supreme Court in Murdock v. Ward, supra, and it is this same legislative history which plaintiffs claim was not considered by the Supreme Court in reaching what the plaintiffs assert was an erroneous result in that case.

When the 1870 tax exemption provision was introduced in Congress, there was vigorous opposition to it. Debate on the measure was only in terms of the income tax. See 41 Cong. Globe pp. 1877-1880; 5021-5025. Plaintiffs say that the mention of the income tax was merely for purposes of illustration, and that Congress intended to make these bonds free of all taxes, of whatever nature and however levied, and that this tax exemption was absolute. These 1870 bonds were issued at the beginning of a period when the Government’s method of financing the public debt was to issue bonds at a low interest rate, but with a tax exemption to insure marketability and to make the bonds attractive to prospective purchasers.

Whether Congress in 1870 thought that it had to make, and did make, these bonds tax free in the absolute sense contended for by plaintiffs is the question for the court to decide. The language of the exemption does not require such an absolute exemption, unless “duties” is a term of art necessarily including Federal estate taxes, an argument which we will discuss later in this opinion. The language of the exemption does not give a clear answer; the legislative history also fails to provide a clear-cut answer to the question of the legislative intention. It is possible that the reference to income tax during the debates was merely for purposes of illustration, as plaintiffs suggest, but it was stated during the debates that the only tax which could apply to these bonds would be the income tax, because otherwise the tax would be a direct tax and would have to be apportioned. See 41 Cong. Globe 1591.

Plaintiffs say the debate shows that Congress thought it was surrendering all rights to tax in reference to these bonds. The language of the debates gives such a general impression, but that general language is colored and limited by the frequent references to income taxes as the sole tax which could be imposed upon these bonds. The Government says that if Congress had intended to exclude the inheritance tax from the scope of the 1870 exemption, it would have said so in view of the fact that there was then on the books a Federal inheritance tax law. However, that inheritance tax law was repealed by the act of July 14, 1870 (16 Stat. 256, 257), such repeal to become effective October 1, 1870. Although the Federal inheritance tax law was not effectively wiped off the statute books until October 1870, Congress had decided to répeal it, and there was no reason to discuss its applicability to the bond issue, but neither can we draw any conclusion from the failure to discuss the Federal inheritance tax as plaintiffs would have us do.

For all practical purposes, there was in existence at the time of the 1870 bond issue no Federal inheritance tax and certainly no Federal estate tax law. The first estate tax law was not imposed until the act of 1916 (39 Stat. 756).

The situation in the case of the Panama Canal bonds and the Federal estate tax is somewhat analogous to the situation of the Liberty Loan bonds and the Federal gift tax. The Liberty Loan bonds (second and third issues) were exempted “from all taxation, except estate or inheritance taxes, imposed by authority of the United States, or its possessions, or by any State or local taxing authority.” Act of April 24, 1917,40 Stat. 35, 31 U.S.C. § 746. At the time these Liberty Loan bonds were issued, there was not and had never been a gift tax. Congress was apparently aware of the problem of estate and inheritance taxes and expressly excluded them from the scope of the tax exemption.

When the Federal gift tax law was later enacted, holders of the Liberty Loan bonds urged that the bonds were not subject to the gift tax, because Congress had expressly excluded only estate and inheritance taxes from the scope of the exemption. However, this court and the Tenth Circuit held that such bonds were not subject to estate or inheritance taxes in the first place and that the exception to the exemption added nothing; i.e., that estate and inheritance taxes were not taxes upon the bonds in the first instance and therefore expressly excluding such taxes from the scope of the tax exemption did not, under the rule of expressio unius est exclusio alterius, show an intent to exempt the bonds from the gift tax. Hamersley v. United States, supra; Phipps v. Commissioner of Internal Revenue, 91 F.2d 627" court="10th Cir." date_filed="1937-08-16" href="https://app.midpage.ai/document/phipps-v-commissioner-of-internal-revenue-1494873?utm_source=webapp" opinion_id="1494873">91 F. 2d 627 (1937).

In the case of the Panama Canal bonds we look to the legislative history of the prototype exemption clause found in the 1870 act. Congress in 1898 enacted a Federal inheritance tax law, and the Supreme Court, in Murdock v. Ward, supra, found that the 1870 tax-exempt bonds were subject to the 1898 inheritance tax. The conclusion reached in that decision was that the inheritance tax was not a tax on the bonds but a tax upon the right to transfer the bonds. We do not believe that the Supreme Court reached that decision by confusing the constitutional issue of the Plumvmer case, as plaintiffs suggest, and we do not think that the Supreme Court overlooked any legislative history which would have pointed conclusively to a different result. It is this same legislative history which this court is now examining; i.e., the legislative history of the 1870 act.

Our problem becomes more complicated when it is remembered that this same language of the 1870 act was adopted in the 1909 act without comment, and without any indication that the Murdoch decision might have changed the original meaning of that exemption clause. Plaintiffs say there is no reasonable ground for a court to conclude that Congress when it adopted the exemption clause in 1909 had in mind the interpretation placed upon that clause by the Supreme Court in the Murdock v. Ward, supra, decision. They claim there was no indication that the Congress was aware of that decision. On the other hand, we have no basis for finding that Congress was unaware of that decision. A parallel is found in the provision for issuing the Liberty Loan bonds in which the question of gift taxes was not mentioned. But since the Federal gift tax is not a tax on the bonds as such, the failure to expressly exclude such taxes did not have the effect of making such gift taxes exempt. The same conclusion would logically follow in construing a similar clause applying to estate taxes.

The second argument which plaintiffs advance to support their theory that Congress intended to exempt the Panama Canal bonds from Federal estate taxes is the argument that the word “duties” as used in the exemption provision refers to death duties such as Federal estate taxes, and therefore the use of that word shows that Congress intended to exempt Federal estate taxes. Historically, the term “duties” was frequently used when referring to “death duties” such as inheritance taxes. This is shown in the discussion of the history of such taxes or duties in Knowlton v. Moore, 178 U.S. 41" court="SCOTUS" date_filed="1900-05-14" href="https://app.midpage.ai/document/knowlton-v-moore-95281?utm_source=webapp" opinion_id="95281">178 U.S. 41 (1900). However, from 1861 to 1866 income taxes were referred to as income “duties”.² After 1870 the use of the term “duties” when referring to income taxes appears to have been dropped. Plaintiffs urge that when speaking of “death duties” such as inheritance taxes or estate taxes, the Congress always used the phrase “duties or taxes” or “taxes or duties”.³

However, the word “duties” has frequently been used by the Congress, the courts, and lawbook writers to mean taxes such as probate duties, income duties, and similar taxes. It is often used in reference to imports or customs. At any rate the use of that term alone, without further explanation, does not show a legislative intention to exempt the bonds from all death duties, including Federal estate taxes.

It is equally possible that Congress was using the term “duties” as being synonymous with the term “taxes”. There is support for that view when we consider that up to about 1870 Congress also used the term “duties” when referring to income taxes, and in the act of July 13,1866 (14 Stat. 98), Congress provided that whenever the word “duty” appeared in the income tax law it was to be construed to mean “tax”. Thus Congress expressly equated the two terms, and it is quite likely that the use of both “taxes” and “duties” in the exemption clause meant no more than the word “taxes” alone would mean, and that its use was merely a vestigial clinging to the old and meaningless term.

This interpretation is strengthened when we consider that the nse of the phrase “taxes or duties” in the 1870 bonds was held in Murdock v. Ward, supra, and we believe correctly so, not to prevent the imposition of one type of death duties; i.e., inheritance taxes. There seems to be no compelling reason to conclude that the use of that same phrase would prevent the imposition of the type of death duties involved in this litigation; i.e., Federal estate taxes. Tax exemptions are normally to be construed narrowly, and are not to be found by implication. United States v. Stewart, 311 U.S. 60" court="SCOTUS" date_filed="1940-12-16" href="https://app.midpage.ai/document/united-states-v-stewart-103383?utm_source=webapp" opinion_id="103383">311 U.S. 60 (1940); U.S. Trust Co. v. Helvering, supra; Merchants Nat. Bank of Mobile v. United States, 93 Ct. Cl. 464" court="Ct. Cl." date_filed="1941-04-07" href="https://app.midpage.ai/document/merchants-national-bank-v-united-states-8588722?utm_source=webapp" opinion_id="8588722">93 C. Cls. 464 (1941).

We hold that the words “taxes” and “duties” as used in the statute involved in the instant case and as used in the bonds issued thereunder were meant by the Congress to exempt the principal and interest of such bonds from taxes levied by the United States, as well as taxes levied by any State, municipality, or local authority, and were not intended and did not have the effect of exempting a decedent’s gross estate from estate taxes, which are a tax not upon the property itself, but upon the transfer or shifting of ownership of such property.

Plaintiffs’ petition will be dismissed.

It is so ordered.

Lakamoke, Judge; and Whitakek, Judge, concur.

1 Plaintiffs herein are executors of the last will and testament of Gordon Blanding, who died September 11, 1945, and trustees of the trust created by the last will and testament of said decedent.

2 See act of August 5, 1861, 12 Stat. 292; act of July 1, 1862, 12 Stat. 432; act of March 3, 1863, 12 Stat. 713 ; act of June 30, 1864, 13 Stat. 223 ; act of March 3, 1865, 13 Stat. 469 ; act of July 13, 1866, 14 Stat. 98.

3 See act of July 6, 1797,1 Stat. 527; act of July 1, 1862, 12 Stat. 432, 485; act of June 30, 1864, 13 Stat. 223, 286; act of July 13, 1866, 14 Stat. 98, 140; act of June 13, 1898, 30 Stat. 448.

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Concurrence Opinion

MaddeN, Judge,

concurring in the result:

, I concur in the decision because I think we are not free to inquire as to the intent of Congress, in view of the Supreme Court decisions discussed in the opinion of the court.

FINDINGS OF FACT

The court makes findings of fact, based upon the stipulation of the parties, and the briefs and' argument of counsel, as follows:

1. Gordon Blanding died in the city and county of San Francisco, State of California, on the 11th day of September 1945, and at the time of his death was a resident of said city and county and left estate therein.

2. Said decedent left a will dated June 15, 1940, and six codicils thereto, all of which were duly admitted to probate as his last will and testament on October 3, 1945, by order of the Superior Court of the State of California in and for the city and county of San Francisco.

3. Plaintiffs above named, A. Crawford Greene and Wells Fargo Bank & Union Trust Co., since December 20, 1954, known as Wells Fargo Bank, were nominated by said last will and testament as co-executors thereof and as co-trustees of the trust therein created. By order of said Superior Court, plaintiffs were duly appointed as co-executors on October 3, 1945, and qualified as such on said date. Letters testamentary were issued to said plaintiffs on October 3,1945, and ever since said date plaintiffs have been and now are the duly appointed, qualified and acting executors of the last will and testament of said decedent.

4. Among the assets of said decedent which came into the possession of plaintiffs as such executors were certain United States 2>% Panama Canal loan bonds dated June 1, 1911, and due June 1, 1961, with an aggregate par value of $1,432,600. Said bonds were issued pursuant to provisions of section 39 of the act of Congress of August 5, 1909 (36 Stat. 117), as amended by the acts of Congress of February 4, 1910 (36 Stat. 192), and March 2, 1911 (36 Stat. 1013). Said section 39 provides in part:

* * * the bonds herein authorized shall be exempt from all taxes or duties of the United States, as well as from taxation in any form by or under State, municipal or local authority * * *

Each of said Panama Canal loan bonds, issued pursuant to said statute, which was owned by said decedent at the date of his death, and which constituted a part of his estate, on its face contained the following provision:

The principal and interest are exempt from all taxes or duties of the United States as well as from taxation in any form by or under State, Municipal or local authority.

5. On December 11,1946, plaintiffs, as executors of the last will and testament of said decedent, filed a Federal estate tax return with the Collector of Internal Revenue at San Francisco, California, on behalf of said decedent’s estate. As Item 139 of Schedule B in said estate tax return, plaintiffs listed said Panama Canal loan bonds, but plaintiffs did not include said bonds as a part of decedent’s gross estate subject to tax, and by way of explanation stated on the face of said estate tax return as follows:

Note: The value of these bonds and accrued interest thereon is excluded from taxation herein pursuant to the tax exemption clause contained in each bond as follows: “The principal & interest are exempt from all taxes or duties of the U.S. as well as from taxation in any form by or under State, Municipal or local authorities.

6. Subsequently, on January 16, 1947, plaintiffs, as executors of the last will and testament of said decedent, filed an amended estate tax return with said Collector, in which return, as Item 139 of Schedule B, both the principal of and accrued interest to date of death on said Panama Canal loan bonds were included as a part of decedent’s gross estate subject to tax. Said plaintiffs attached to the amended estate tax return a letter addressed to the Collector dated January 14,1947, insisting upon their claim that said Panama Canal loan bonds and the accrued interest thereon to date of death were not subject to estate tax, and stating that the reason for inclusion of said Panama Canal loan bonds as a part of said decedent’s gross estate was merely to stop the running of interest, and that plaintiffs reserved the right to challenge tax-ability of said bonds by a claim for refund and suit or other appropriate proceeding to recover the taxes attributable to said bonds.

7. At the time when plaintiffs filed said Federal estate tax return on December 11, 1946, plaintiffs, as executors, paid to said Collector the sum of $3,518,563.59, the estate tax shown due on said return. At the time when plaintiffs filed said amended estate tax return on January 16,1947, plaintiffs, as executors, paid to said Collector the additional sum of $1,113,594.34 principal and $6,482.23 interest. Said sum of $1,113,594.34 was the additional sum due by reason of inclusion of said Panama Canal loan bonds and accrued interest thereon to date of death in decedent’s estate, and said sum of $6,482.23 was interest on $1,113,594.34 from December 11, 1946, the date on which the estate tax was due, to J anuary 16, 1947, the date of payment.

8. On July 14,1948, plaintiffs, as executors of the last will arid testament of said decedent, paid an additional estate tax in the amount of $42,053.45 plus interest thereon in the amount of $4,022.73 from December 11, 1946, the date on which said tax was due, to July 14, 1948, the date on which said tax was paid. Thereafter, plaintiffs were allowed a credit of $10,513.36 in connection with the additional tax previously mentioned. This credit, of which plaintiffs were advised by the Commissioner of Internal Revenue in a letter dated November 23, 1948, was attributable to allowance for State inheritance taxes paid. The aforementioned payment of additional tax and interest and the subsequent credit in connection therewith were occasioned by issues not involved in the present claim.

9. By Decree of Final Distribution duly made, signed and entered on December 14,1948, by order of the Superior Court of the State of California in and for the city and county of San Francisco, all the rest, residue and remainder of the estate of said decedent was distributed to plaintiffs as trustees of the trusts created by the last will and testament of Gordon Blanding, deceased; and said rest, residue and remainder so distributed to plaintiffs as such trustees, by the terms of Paragraph IV of the seventh clause of said Decree of Final Distribution, expressly included all rights to or claims for refunds of estate taxes.

10. Within three years after payment of the estate tax on decedent’s estate as aforesaid and on December 5,1949, plaintiffs, as such executors and trustees, filed with the Collector of Internal Revenue at San Francisco, California, their claim for refund of Federal Estate tax on Treasury Department Form 843. The total estate tax paid on behalf of said decedent’s estate was $4,674,211.38, and said claim was for the refund of $1,141,094.46 plus interest as provided by law.

11. $1,113,937.37 of the $1,141,094.46 for which said claim for refund was filed, is that portion of the estate tax paid by reason of the inclusion in said decedent’s gross estate of the aforesaid Panama Canal loan bonds with interest accrued thereon to date of death. The difference between $1,113,-594.34, the amount of tbe additional estate tax paid on January 16, 1947, attributable to said Panama Canal loan bonds, and accrued interest thereon to date of death, (as set forth in finding 7) and $1,113,937.37, the amount for which a claim for refund was filed on account of the inclusion of said bonds and such accrued interest thereon in decedent’s gross estate, is due to adjustments made on audit of decedent’s amended estate tax return subsequent to January 16, 1947, which adjustments resulted in the application of a higher estate tax rate to the assets of decedent’s estate.

12. On January 15, 1951, the Internal Revenue Agent in Charge at San Francisco, California, acting on behalf of the Collector of Internal Revenue, submitted to plaintiffs, as such executors and trustees, a proposed adjustment of said claim for refund, providing for a refund of $27,157.09, exclusive of interest, on.account of matters not at issue in this case, and rejecting plaintiffs’ claim insofar as it related to said Panama Canal loan bonds.

13. Within thirty days from the date of the submission of said proposed adjustment to plaintiffs, and on February 7, 1951, plaintiffs, as such executors and trustees, submitted to the Internal Revenue Agent in Charge their protest to said proposed adjustment of claim for refund.

14. By letter dated September 27, 1951, the Commissioner of Internal Revenue notified plaintiffs, pursuant to the provisions of Section 3772(a) (2) of the Internal Revenue Code of 1939 that their claim for refund of $1,141,094.46 had been disallowed except to the extent of an. allowance made on Schedule of Overassessments, numbered IT-170700. Plaintiffs had been previously advised of this allowance in the total amount of $29,754.87 plus interest of $5,578.02 by a Certificate of Overassessment, and plaintiffs received a refund in the amount of such allowance. The said amount of $29,754.87 represented $27,157.09 of estate tax and $2,597.78 of interest thereon theretofore paid by plaintiffs. No part of such allowance or refund related to issues involved in the present claim. The difference between $1,141,-094.46, the total amount of plaintiffs’ claim for refund, and said refund of estate tax of $27,157.09, or $1,113,937.37, is the amount of estate tax paid by plaintiffs by reason of the in-elusion in decedent’s net taxable estate of the subject Panama Canal bonds and interest accrued thereon to date of •decedent’s death.

15. Within two years from the date of mailing said notice of allowance by the Collector of Internal Revenue, and on September 22, 1953, this proceeding was filed in this court to recover $1,113,937.37, the amount of plaintiffs’ claim for refund which had been disallowed by the Collector, with interest thereon as allowed by law.

18. The only issue of United States bonds containing an •exemption from “taxes or duties of the United States” which has at the date hereof not matured or been called and on which interest is still being paid is the 3% Panama Canal bonds of 1911-1961. On October 31, 1956, the amount of these bonds outstanding was $49,800,000.00. All other issues -of bonds which carry an exemption from “taxes or duties •of the United States” have now ceased to earn interest either pursuant to call or because of maturity. The following list ■describes and gives the outstanding amount on November 20, 1956, of each issue of United States bonds which contains an ■exemption from “taxes or duties of the United States”:

Amount outstanding Loan December SI, 1955

Funded Loan 1881_ $19,400. 00

Funded Loan 1891_ 18,700. 00

Punded Loan 1907_ 343,000.00

Funded Loan 1881 (Continued)_ 50.00

Loan of 1904_ 13,000. 00

3 percent Loan 1908-18_ 98, 340. 00

4 percent Loan 1925_ 8, 550. 00

2 percent Consols 1930- 10,000. 00

2 percent Panama Canal 1916-36_ 60. 00

2 percent Panama Canal 1918-38_ 20. 00

3 percent Conversion Bonds 1946_ 100. 00

Qi/2 percent Postal Savings Bonds (series

1-49) _ 2,203,800.00

17. In 1939 Gordon Blanding made an irrevocable gift in trust of $1,000,000 par value 3% Panama Canal bonds of 1911-1961 for the benefit of his daughter, Henriette de Saussure Goodrich. On April 19, 1940, Gordon Blanding filed a Federal gift tax return on which he declared this transfer as subject to a gift tax of $287,347.71 which amount was duly paid. Neither Gordon Blanding, his estate, nor anyone acting for or on behalf of either has ever filed a claim of any type for the refund of said gift tax.

18. Plaintiffs, by virtue of the aforesaid decree of distribution in the estate of said decedent and by operation of law, on December 14, 1948, as trustees of the trusts created by the last will snd testament of said decedent, succeeded to all the rights to recover and to claim refund of Federal estate taxes assessed and collected against said decedent’s estate by virtue of the inclusion of the aforesaid Panama Canal loan bonds therein. Except for said transfer by operation of law and by virtue of said decree of distribution, there has been no assignment or transfer of the right to recover or to claim refund of said Federal estate tax, or any part thereof. Plaintiffs, as such trustees, were at the date of filing of this action, and ever since said date have been, and now are the sole owners of all of said right to recover and to claim refund of said Federal estate taxes assessed and collected against said decedent’s estate by reason of the inclusion of said Panama Canal loan bonds therein.

CONCLUSION 0E LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and the petition is therefore dismissed.