1940 BTA LEXIS 889 | B.T.A. | 1940
Lead Opinion
The petitioner contends that the sum of $4,517.01, payable to the decedent’s wife in monthly installments was erroneously included by the Commissioner in decedent’s estate because it was insurance within the intent of section 302 (g) of the Revenue Act of 1926, as amended.
The respondent’s position is that the amount is not insurance, but was properly included in decedent’s gross estate and was transferred from the decedent to his wife within the meaning of section 302 (©) or (d) of the Revenue Act,of 1926, as amended.
Examination of the circumstances and provisions under which the amount in controversy was accumulated and paid to decedent’s wife discloses that the money, except- interest allowed, was subtracted from the decedent’s salary over a period of years, that in case of his resignation or dismissal he had a right to draw the sums accumulated and interest; that upon October 27, 1932, he had' served for 35 years and thereafter had a right to retirement on pension and to withdraw the accumulations with interest. The designation of his wife as beneficiary provided that she be paid the sums involved in the event of his death prior to retirement on pension. It thus appears that both prior
The petitioner cites to us In re Estate of Mary V. Fitzsimmons, 158 Misc. 789; 287 N. Y. S. 171; affd., 248 App. Div. 862, which, like' the present proceeding, involved the teachers’ retirement system and where the New York courts held that the amount received was, as insurance, exempt from the New York estate tax. That case was cited to the
Decision will Toe entered for thá resyondent.
SBC. 302 [as amended by section 404 of tbe Revenue Act of 1934], The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside the united States—
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(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, * * *
(d) (1) To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death.
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(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.
See footnote No. 1, supra.