JACKSON v. UNITED STATES

Print this transcript Transcript: 

Argument of Paul Burks

Chief Justice Earl Warren: Number 361 et al. Jackson with et al petitioners versus United States.

Mr. Burks.

Mr. Paul Burks: Mr. Chief Justice, may it please the Court, counsel for respondent.

This case is here for a review of a decision of the Ninth Circuit Court of Appeals which held that support allowance payments to a decedent's widow did not qualify for the marital deduction under the estate tax laws.

The Revenue Act of 1916 which was the beginning of the modern estate tax law contained a provision allowing a deduction and computing the net estate for amounts paid to those dependants upon the decedent during the administration of the estate.

The wording was slightly changed in the Revenue Act of 1918, but it thereafter remained the same until that deduction ceased to be allowed as a standard deduction by the Revenue Act of 1950.

It appeared in the 1939 Internal Revenue Code as Section 812 (b) (5) and it provided as I recall it that should be allowed as a deduction for amounts reasonably required and actually expended for the support during the administration of the estate of those dependant upon the decedent.

The Revenue Act of 1948 by Section 811 (e) introduced the marital deduction concept into the federal estate tax law.

The 1948 Revenue Act did not repeal Section 812 (b) and from then until 1950, that deduction for support payments continued to be allowed in addition to the marital deduction.

During that two year period, it was possible to channel more than half of a decedent's estate to his or her surviving spouse without payment of the estate tax because the support payments under Section 812 (b) were 100% deductible and the marital deduction was limited to 50% of the decedent's adjusted gross estate.

Now, Section 812 (b) payments -- 812 (b) (5) payments were deducted in computing the adjusted gross estate, but because Section 812 (b) (5) payments were 100% deductible and the marital deduction was limited to 50% of the adjusted gross estate, it was nevertheless possible to channel more than half the decedent's property to his/her surviving spouse free of estate tax and in many estates that made the difference between the payment of estate tax and no payment of estate tax.

Congress acted quickly and in 1950, 812 (b) (5) was eliminated as a standard deduction, but at that time, Congress said, amounts heretofore allowed under the marital deduction provision will nevertheless be allowed – Congress said that amounts previously we allowed under 812 (b) (5) would be allowed under the marital deduction provisions subject to the conditions and limitations of that Section.

Now the purpose of the marital deduction of course was to equalize the state tax treatment between residents of Common Law and Community Property Estates and the substantive conditions and limitations of the marital deduction provisions were the condition that the property be included in the decedent's taxable estate, the condition that it go to the surviving spouse in such a manner as to be taxed in the estate of the surviving spouse if not consumed and the limitation that the total amount allowed under the marital deduction provision not exceed 50% of the decedent's adjusted gross estate.

Justice Potter Stewart: And that it not be a terminable interest or have you already mentioned that?

Mr. Paul Burks: I haven't come to that sir.

Justice Potter Stewart: But that is one of the provisions.

Mr. Paul Burks: That is one of the provisions of Section 812 (b), yes sir.

Mr. Justice Stewart I think I did say something related to that.

I said that the property had to go to the surviving spouse in such a way as to be taxed in the surviving spouse's estate and I believe that, that was the reason for the terminable interest rule.

Section 812 (b) (1) (2) I believe it is, is entitled life estates or other terminable interests and that I believe was designed to prevent an interest such as a life estate from qualifying for the marital deduction because it then would not be taxed in the estate of the surviving spouse.

Justice Potter Stewart: I am not sure I follow.

A life estate to a surviving spouse is not qualified as a marital deduction?

Mr. Paul Burks: No sir.

Justice Potter Stewart: But it is taxable I heard.

Mr. Paul Burks: It's taxable in the decedent's estate.

Justice Potter Stewart: In decedent's estate.

Mr. Paul Burks: Yeah, that's right.

But, it doesn't go to the surviving spouse in such a way as to be taxed in the estate of the surviving spouse.

Justice Potter Stewart: I see.

Unknown Speaker: (Inaudible)

Mr. Paul Burks: Right, I think that applies to dower interest and other interest of that type.

Now, if the Commissioner of Internal Revenue and the courts had given substantial effect or really any effect to what Congress said in 1950 when 812 (b) (5) was eliminated as a standard deduction, the equality of tax treatment as between taxpayers and separate property and community property estates would have been more nearly achieved but as it turned out very few support payments have been allowed under the marital deduction provision.

The first argument of The Commissioner of Internal Revenue was that they weren't passing interest within the meaning of Section 812 (b), but it is well settled at this time both by court decision and by the regulations of the commissioner that support payments are considered to be passing interest within the Federal Estate Tax Law.

The objection that is raised now to the allowance of support payments under the marital deduction provisions is that they are terminable and that concept finds its greatest expression I believe in the Ninth Circuit and a decision entitled estate of CUNA.

Now the basis of that decision is that because it can't be known at the instant of the decedent's death whether or not the surviving spouse will get any family allowance that it's a terminable interest, they say that the property are the assets of the estate and not the payment.

And for that reason they disallowed in the estate of CUNA periodic support payments as a deduction under the marital deduction provisions.

Justice Potter Stewart: These support payments as a matter of state law are typically not provided for by the will, but rather are ordered by the probate court.

Is that right?

Is that true?

Mr. Paul Burks: That's true Mr. Justice Stewart so far as I know.

Justice Potter Stewart: That's certainly true in this case and I suppose it's typically true, isn't it?

It's nothing that you're providing a will but it's something that's allowed as a matter of the state law in the –-

Mr. Paul Burks: That's a statutory right, the statutory right.

Justice Potter Stewart: The amount depending upon the discretion of the probate judge.

Mr. Paul Burks: That's right, and normally the discretion of the probate judge under Section 812 (b) (5) determined what was reasonably required and actually expanded, if the surviving spouse died, the payments might stop and then the deduction would be limited to what was actually paid.

Now the courts retreated somewhat from that rule in the Fifth and the Eighth Circuits in particular, and through decisions United States against First National Bank of Augusta, and in the E. O. Bookwalter case in the Eighth Circuit and they have held that lump sum support allowance payments will qualify for the marital deduction because the award when made best indefeasibly in widow or her estate, and should therefore be allowed.

Now in the opinion of petitioner that rule does not go far enough, but at least most of the courts in the country at this time including the Tax Court and through decisions in which the commissioner has acquiesced, recognized the lump sum support payments will qualify for the marital deduction if they vested indefeasibly in the surviving spouse on the date of the order.

Now one ground petitioner's – excuse me petition to this Court is that we have the lump sum allowance.

The decedent G. A. Richards died in California on May 27, 1951.

On June 30, 1952 more than 13 months after the date of the decedent's death, the California Court ordered an allowance of $3000 a month payable to Mrs. Richards, and at the time of the order, on the day the order was made, the order was retroactive to the date of the decedent's death, and on the day the order was made $42,000 indefeasibly vested in Mrs. Richards and belonged to her or her estate regardless of whether she remarried or died after that order was made.

Justice Potter Stewart: When did she actually get the money?

Mr. Paul Burks: She was actually paid the money shortly thereafter, but if she hadn't received it, her executive could have collected it from the estate and we say that is a lump sum allowance because on the date of the order she or her successors in interest had a fixed vested right in the $42,000.

Chief Justice Earl Warren: It was at the date of the order?

Mr. Paul Burks: That's right, Your Honor.

Chief Justice Earl Warren: Not as of the date of death?

Mr. Paul Burks: No, Your Honor.

Justice Potter Stewart: Is that clear as a matter of California Law that as of the date of the order, she or if she died, her executor --

Mr. Paul Burks: Yes, In Re Lukach is the decision which so holds --

Justice Potter Stewart: Is there any argument on that?

Mr. Paul Burks: No.

Justice Potter Stewart: It's not account for?

Mr. Paul Burks: I don't believe so, but petitioners would like to go further than that.

We would like to think the Congress when it said in 1950 should support allowance would be allowed under the marital deduction provision that is exactly what it said an 812 (b) prior payments or payments normally made soon to order of the local court during the course of the administration of the decedent's estate.

Now this is a national law.

In the opinion of petitioner should be given uniform application, and the Rights of Taxpayers in Common Law estates, because this no longer applies to community property, but the rights of Taxpayers and Common Law estates should not be made to depend on little subtle differences in local law, if a surviving spouse receives payments for her support, in cash, as is the case here, that is the full interest in the property, it is not a life estate.

It is indeterminable interest, it's something that's the full interest and it should be allowed in the opinion of petitioners subject to the 50% of adjusted gross estate limitation and subject to courts it's having been paid out a property which is included in the decedent's gross estate subject to tax.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: Mr. Justice Goldberg, it is critical.

It's the basis upon which all of the courts have disagreed.

And I think in any estate, you have to look at what a decedent owns and what he owes as of the date of his death.

If a man leaves his widow 1/3rd of his net distributable estate, it isn't known when he dies whether she is going to get anything.

The claims of creditors and other things that might happen and the estate might entirely destroy, her right to that one third of the distributable net estate, but when the marital deduction is computed, that one third concept is related back to the date of death and some courts have been honest enough to say, that's what they are doing when they allow lump sum awards for example.

Now the Fifth Circuit in United States National Bank, the Bank of Augusta case, US against the First National Bank of Augusta, said they would look at the date of the order, but in determining the whole concept of this payment, they necessarily had to look at the date of death to determine the gross estate, and to do other things in that estate.

And the Sixth Circuit, in Dourdy, cited with approval in respondent's brief, the widow had a dower right.

She renounced under her husband's will and said I want to take under the intestacy laws, she had a dower right, which was a terminable interest.

Over 13 months after the decedent's death, she elected to convert that dower right into cash under Kentucky Law.

The courts said they would relate that elected back to the date of death and that I think what it should be done in all support payments.

In the Fifth Circuit case, United States against the First National Bank of Augusta, the award was not of cash, it was 59,000 in bonds, negotiable securities.

The Court there held that the date of the order was controlling, but they had to go back to the date of death for some purposes and whether that widow had petitioned twice instead of once and she had gotten $30,000 worth of bonds on two separate occasions, but what if she had petitioned 15 times, and gotten $4000 worth of bonds on each occasion, it would be the date of the order and when you have one order that gives monthly right fruition as each month goes by, shouldn't that be treated the same as though it were a over lump sum award.

When the right rests, it all relates back to the date of death, the lump sum award cases necessarily have to relate the payment back to the date of death, but that relation back shouldn't be limited to lump sum awards.

It's paid out of the estate.

If it's paid in such form, if it's paid in life estate, I don't think it should qualify.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: That is true, but the action of the widow on the Sixth Circuit, the action of the widow on the Fifth Circuit and then the Eighth Circuit, all could have terminated the allowance or prevented if from coming into being and under the old Section 812 (b) concept – (b) (5) concept, which was in the estate tax law for 34 years, it was the payment, that was the thing that was important and petitioners feel that that same rule should be applied here.

It doesn't result in any avoidance of tax.

It is still limited by the 50% adjusted gross estate concept, and it's paid full interest.

If it was paid in cash or in bonds, it goes to the surviving spouse, thank you.

Chief Justice Earl Warren: Mr. Jones.

Argument of John B. Jones

Mr. John B. Jones: Mr. Chief Justice, may it please the Court.

I think it's important to remember that Section 812 (b) (5) was repealed and is no longer in the law.

If there is to be a deduction in this case, it has to be under the marital deduction Sections of the code.

It's perfectly clear that there's no surviving vitality 812 (b) (5), it was wiped out.

And I think it's important to look at the marital deduction and to realize that there isn't any reason of natural law or that one could reach by logic, why an estate tax must have a martial deduction in it.

Estate tax existed for good many years without a marital deduction.

Justice Potter Stewart: But all those years, there was deduction for it for a widow?

Mr. John B. Jones: That's quite true, but I'm talking here to try and explain what the marital deduction provisions are.

The reasons which I assign to the development, the marital deduction provisions won't have anything in particular to do with the corresponding development of that law.

And I would just like to make sure we understand what the marital deduction provisions provide and then if they repeal 812 (b) (5), causes a change in marital deduction, and we can examine that as to that point.

It's perfectly clear that there wasn't 812 (b) (5).

Justice Potter Stewart: And it was to repealed only after a marital deduction was provided and only after two years of experience showed that you could, with the combination of the two, you could get more than half of the adjusted gross estate, exempt from state tax --

Mr. John B. Jones: Yeah, it may be that the martial deduction provision highlighted a possibility of distortion that had existed before, but as I say, up until 1948, our state tax laws had no provision for a marital deduction and the reason, as everyone agrees, is that in order to equalize the burden between the community property states and the common law states where in the community property estates, the wife is considered as owning half of the property all along and that half of the property wasn't included in the husband's estate.

For a while, there was an attempt from that 42 to 48 to reverse a situation and try and disregard property law in the community property states and say that the wife's part still had to go through her husband's estate, or didn't under local law.

That didn't work and then Congress was faced with other alternatives.

Now there were lots of things that Congress could have done to meet this.

They could have done like credits against tax, different kinds of allowances, only special kinds of widows allowances, a whole field was open to them.

And what they picked was a very specialized marital deduction provision and you don't have any natural right to it.

You either come within what Congress just specified as a marital deduction, or there is no marital deduction.

Now this doesn't mean that in interpreting we can't apply some balance and try and work on the purposes of the Congress, but it is perfectly clear there must be somewhere in the marital deduction provision, a license for the construction which is adapted.

Justice Potter Stewart: For how long a period was the property previously tax provisioned in the estate tax law, it was six years or so?

Mr. John B. Jones: I couldn't answer that.

I don't know when that --

Justice Potter Stewart: That was a predecessor to the marital deduction provision.

Mr. John B. Jones: That's right.

42 was when they did this reversal and I think the property previously tax was in existence at that time, but I'm not sure.

Justice Potter Stewart: Of course that, those durations weren't defined to spouse, the spouse as --

Mr. John B. Jones: No.

No, not at all, that could be successive generations or brothers and sisters --

Justice Potter Stewart: And involved a chronological limitation within --

Mr. John B. Jones: Right, right, but that wouldn't meet all the problems of course of the community property estate.

Justice Potter Stewart: I was just really asking for information.

Mr. John B. Jones: I'm sorry I'm not able to supply any information.

But when they set up the marital deduction provision, there were two problems with which they could legitimately be concerned in trying to equalize community property and common law estate.

The first was that in -- if you give life estate to the wife with remainder to your children, that's something that a man in a community property estate can't do because wife already has a full title to the property.

And furthermore, that life estate and the wife as we have discussed earlier is not going to be part of her estate, being incumbent, we can presume that it'll be consumed and so therefore, it won't be in her estate.

But there's another problem and which is also to be considered that in a community property estate, the husband can't put any other strings on this property going to wife.

He can't wait and see whether she is going to survive two months, six months, a year.

He can't wait and see whether she remarries.

So he can't put any conditions on at all.

As of the instant of his death, that property is hers.

And if you're going to equalize between the community property estates and the common law estates, you would not want to allow the common law estates to have a condition a second look that wouldn't exist in the community property estate.

Now, I am not saying that that's a necessary judgment or one that you'd have to make or one that you couldn't put some exceptions in it, but Congress didn't.

And the provision which Congress adopted is the one of course we're concerned with here today, 812 (e) (1) (b), and it does not provide as though it covers the situation, it is not phrased in terms of making sure property is subject to tax in the second estate.

What it says is that where an -- this is on our brief page 21, the statutory language is helpful to look at though I think there is no dispute about it but where an interest in property may terminate or fail on the occurrence of an event or the failure or an event to occur, this is very broad language and where another interest in the same property has passed from decedent to some other person and that person will enjoy the property then you don't get a marital deduction.

Now that's a lot more than you'd have to say if all you are going to do is say we want to be sure we get at least one estate tax or if what all you wanted to do was deal with the life estate problem and it's a very clear mandate and it is in the Section under which the petitioner's here must claim.

It's a strong arm rule with the exception which I will just discuss, it doesn't permit of any exceptions and it can come down pretty hard.

Now the Congress did say one exception.

If you want to put in your will a provision that your wife will not take under the will by unless she survives you by six months or you may permit that condition to operate but it can't be for more than 6 months and if you go beyond the 6 months period in you will it doesn't make any difference whether this operates or not.

Now just to make it clear that we understand the way this provision operates and it's been undisputed and accepted by the courts that if a dying husband gives $10,000 to his wife on the condition that she survive him by 8 months and she does survive 8 months and gets a $10,000 and it's going to be in her estate and there is no possibility of avoiding taxation, nonetheless that's taxable to his estate.

The congressional mandate is absolutely clear, you can't beyond 6 months.

Unknown Speaker: That's (e)?

Mr. John B. Jones: (e) (1) (D), yes (e) (1) (D) and that's clear and that's been interpreted in the cases that are cited on page 13 of our brief, that you can't – simply you can't say I give my wife $10,000 you can say it but you won't get the marital deduction for passing there under.

You can't say in your will I will give my wife $10,000 if she survives to the date of distribution and that won't qualify because you don't know that the distribution will occur within the 6 month period and since it can in fact can occur later it will not give you the marital deduction if in fact that she takes it inside the 6 month period.

She still cannot get the marital deduction and why is that, is because it' being universally established in all the cases in the Senate report, in the regulations that the situation has to be viewed at the date of the descendant's death, you don't get a second look.

Now this is the law of the marital deduction, as we find it and I don't really believe it is disputed by petitioners here in a general way.

The question is how are we going to apply these principles to the specific interest here in question and the question -- what we have here and I think was not emphasized on argument in chief is that that widow's allowance here is subject to two very specific conditions.

This has been found and can be found in state decisions interpreting these widow's allowances where it made a difference.

The widow gets nothing, if she doesn't survive until the date of the decree and at that time remained un-remarried.

So she must be un-remarried and alive on the date of the decree to get anything, but there is a separate, completely separate condition which is written in to California law as to each payment, no matter what the time of decree for the period to which it applies, she must also be un-remarried and alive.

There are these two conditions.

Now I offer to the court –-

Justice Potter Stewart: Or she was un-remarried and alive at the time of the order.

Mr. John B. Jones: But I go right back to the case about my wife survives me by 8 months.

She survived me by 8 months, she got everything and it's the condition as of the date of death which determines in the 8 month case.

Justice Potter Stewart: I'm sure you're going to tell us how do you reconcile the commissioner's acquiescence in the lump sum.

Mr. John B. Jones: I don't.

If what we are saying to the court is correct as we believe it is that those acquiescence should be withdrawn as we noted in our brief we've only not done it because this case is in litigation.

The acquiescence is inconsistent with the position that we're arguing here.

Justice Potter Stewart: So now let me ask you one other thing, now that I have interrupted you.

If this order had come within six months, would that have made any difference?

Mr. John B. Jones: No.

I think that's like the eight-point rule.

You have to look at things at the date of death and the fact that the conditions do not occur, the statute says or the failure of the event to occur.

They don't care whether it does or does not occur.

The only question is, is there a condition in there and if there is a condition, you don't get the second look.

This brings them back to the things stated in community property estate but there's no second look in the community property estate.

Everything is at the – the entire half of the property goes over the --

Justice Potter Stewart: Well, but there's a big difference in a community property estates.

You do get the whole half.

Mr. John B. Jones: Right.

Justice Potter Stewart: Here there's no quarrel about the limitation being –- percent of the --

Mr. John B. Jones: Yeah, but I think we have a whole half for what.

The whole half for a complete untrammeled wife -- excuse me!

Untrammeled right to the --[Laughter]

Justice Potter Stewart: Holy --[Laughter]

Mr. John B. Jones: That's what the 100%, a complete untrammeled right to half of the property.

The reason you get to the full deduction is because there are no restrictions on a clear half.

Here we suggest that within the language which has been adopted by code, there is a restriction on the right if there is a condition as of the date of death, you don't know whether the surviving widow will get any of this.

Justice Potter Stewart: How many lump-sum cases have there been decided against you, against your present position?

Several, more than one?

Mr. John B. Jones: Oh!

Yes.

There are, I think, three in the tax court on the fifth case and the Ransom House is a lump-sum.

Justice Potter Stewart: And tax court decisions, three, four, five, and the Commissioner has acquiesced --

Mr. John B. Jones: Not in all of them, but in --

Justice Potter Stewart: When did he first acquiesce?

Mr. John B. Jones: I believe the date was in 1962 in Gale and Rudnick, in those two cases.

And as I say, there's no question the direct acquiescence is inconsistent with the argument I am making here, but I think look at a time when we're presenting the case to the Supreme Court, it's necessary to look and see what the law provides and you can't work the whole future cost course of the law by an acquiescence that was perhaps not as thoroughly thought out as it should have been.

Now I think it's important when we talk about these cases to realize that if decedent in California had made a provision in his will that I want my wife to be paid $3,000 a month, if she survives me un-remarried to the date of each payment, he doesn't have a prayer of getting the marital deduction and I know this is just isn't any argument.

The law is too clear, the statute is clear, and we don't see here how you can justify saying that a different result obtained simply because the state law gives that to them.

Actually, the state law should stand on inferior ground and historically the development a little bit to try and pull state law options back in and give them the same treatment as if they were in the will of the decedent.

But there isn't any suggestion, it seems to me that the rights that a man gets by, or the survivor gets by state law should in any way be superior to what they would be under a straight will condition.

And as I say, it just couldn't be clearer that if this had been in the will of the decedent, there wouldn't be an argument for the martial deduction.

It's always an argument.

Justice Arthur J. Goldberg: (Inaudible)

Mr. John B. Jones: We would say that that will turn solely on the question of whether that's enforceable by her executors as a right which you can predict over a fixed period.

If, just take example, it seems that in some states that all the widow had to say, I want my allowance, thereafter her executives go into court and get it.

And it that case --

Justice Potter Stewart: But she dies the next day--

Mr. John B. Jones: Even if she dies the next day or remarries, that that is the law of some states, the Connecticut statutes made it explicit and the law of other states has been interpreted that way, in that case she has -- the reason why the martial deductions is allowed is not because there's a difference to format, because she has something that she knows she can get.

Now it is true that we have -- the regard of possibility they might be in a common accident, she be unconscious and couldn't reach up and scribble, but that seems to us to be small.

As long as there exists a right which she can do immediately after death, then we would allow it, but if it is subject to things beyond her control and we say that death, the possibility of her dying before the court gets around is clearly a distinction of substance.

I don't know, I have been using word uncontrolled, being remarried is not necessarily uncontrolled but it's to avoid that condition you might have to refrain from doing something you wanted to do.

So it's something that the widow might have to do without regard to her rights to an allowance and I think it's fair to assimilate those two together.

Now, as I say, under the will, there is no prayer, why should there be a different result here?

And as we see it, the petitioners make two main arguments, the first is a broad one and it appears in their, most explicitly in their reply brief at pages 1 and 7 and they come out quite flat footedly and say, well, the terminable interest rule does not apply to statutory widow's allowances and if I read their argument, they say that everything else in 812 (b) you've got to apply but the terminable interest just doesn't make any sense because it's going to disallow a lot of it.

Well, that maybe that it will disallow a large portion of them, but it also will allow, it has been found to allow and under the basic regulations and rulings adopted by the commission, will allow also a substantial number and if there's to be a change in this, it seems to us that it ought to go to Congress.

There's a somewhat anomalous rule of statutory construction that we have to face up to here that in 1948 when the marital deduction was passed and this gets back to Justice Stewart's point that 1948, when it was passed, there was a separate allowance and they were rather clear that this payment for the widow couldn't come in under the marital deduction.

Well, in 1950 because of this possibility of abuse, they removed that and they made some statements about law and at least some of the courts which have considered the problem and found a little awkward to say what a 1950 report can mean about Congress' intention in 1948, when it's perfectly clear that Congress at that time didn't intend it to apply at all, so there is a statutory construction problem there.

But, it is also, if you're going to look at the 1950 report at all, it is very clear that and this of course is set forth in our brief that when you look to the marital deduction, you have to look to all the conditions and limitations and there can't be any warrant for taking all of them except one.

The basic administrative document is the 1953 ruling which has been cited throughout and that is squarely in accord with our present position that you looked a local law and if the right is enforceable independently of the window's survival, then it qualifies.

Justice Potter Stewart: Although, the amount would not be ascertainable.

Mr. John B. Jones: No, as it's been pointed out for –-

Justice Potter Stewart: It might be minima and maxima but the amount wouldn't be ascertainable –-

Mr. John B. Jones: No, but that, you see the point is that – it seems that you can -– a reasonable allowance is a standard that you can live with and you can say we can let the -– it's a little likely, how much the value of the property estate is going to be, valuation is always there but nobody else can take what is found to be a reasonable allowance or support.

She will get whatever that is, what is subsequently found to be.

But that's, if you give a half of your net taxable estate, that's half of what a subsequently found to be your net taxable estate but there is sort of a determination of independent significance.

It has to do with other debts which are recognized and so forth and we've never held under the estate tax but just the dispute as to amount, the amount has to be known at the date of death and as a practical matter, you could not so.

Justice Potter Stewart: Well, half but net taxable estate involves after you count up the creditor's claims and the expenses of administration and rest of it, and then it's just a matter of mathematics but the amount of a widow's allowance depends upon the discretion of a third-party i.e. the probate judge.

Mr. John B. Jones: Yes, but he has some experience within his jurisdiction, there is a standard of living with the widow, I would think that the probate practitioners in any district could give you, I guess, somewhere in the area where the amount would be, what he would allow per month, it's not a wide open field.

Justice Potter Stewart: What do you think the Congress was intending to do in 1950?

Don't you think they eliminated the longstanding deduction and they put it over as part of the marital deduction, didn't they?

And -–

Mr. John B. Jones: Subject to the conditions and limitations there present.

Justice Potter Stewart: Well, --

Mr. John B. Jones: There present is my word.

Justice Potter Stewart: Well, and limitations of Section 812 (e).

Mr. John B. Jones: Yeah, it's on page 10 of the brief.

Justice Potter Stewart: It's on page 16 of the petitioner's brief -– there's an excerpt from the Finance Committee's report.

Mr. John B. Jones: But it is not underlined in the original.

The words do say subject to the conditions and limitations of 812 (e), and even without that language it would be very hard to allow a marital deduction just on the basis of --

Justice Potter Stewart: The obvious limitations -- I mean the most -- the way that everybody knows about it as they have one half limitation and that's clearly nobody is scrolling about but whether or not something was terminable is –-

Mr. John B. Jones: Those words were in the pool that you have got to find something else that's basic and obvious too.

Conditions and limitations maybe you have to have four things.

Justice Potter Stewart: And in how many states would the rule be such as the one you described in Connecticut?

Mr. John B. Jones: Well, at footnote on page 8 of our brief shows all the cases we could find.

They are 6, 7 and the next footnote gives the ones that go the other way.

Actually, I don't want to mislead the court, some of these cases in the top footnote or where people who have been strong armed in defining that's a law estate just because it would help the specific case for the widow's allowance.

I think that the Federal Court by and large is neutral on the point and the last one in Bookwalter and Phelps, I think is a really a mangling of state statute in order to allow the deduction, but that's been what they felt.

But the statute of Connecticut at least is explicit and Michigan was found in a relatively open and frank contamination of the law to be that way, and so we haven't litigated in many of the states.

In fact there are only five states that have come out this way and five, the other --

Justice Potter Stewart: But by contrast you say that I guess, it's agreed that the law of California is clear that --

Mr. John B. Jones: No depute about it.

Justice Potter Stewart: In order to be entitled to a widow's allowance, you (a) have to be living at the time it's allowed and/or paid and (b) be unmarried at that time.

Is that right?

Mr. John B. Jones: But then there is law of California.

Justice Potter Stewart: But by --

Mr. John B. Jones: This point is unfortunately clear --

Justice Potter Stewart: And you on the other hand don't disagree that as of the time of the order in this case since she was alive and was unmarried she was then -- had a vested right to recover $42,000 to $42,000 which would have vested in her executives, do you also agree with that?

Mr. John B. Jones: Well, the minute order was decreed, it would have gone to her executor.

Justice Potter Stewart: At the time of the order.

Mr. John B. Jones: We've agreed with this all along, that after the date the order became final that was enforceable by her executor.

Justice Potter Stewart: Or by her estate.

Mr. John B. Jones: Or by her estate.

Justice Potter Stewart: And whether or not, she died or get married an hour later.

Mr. John B. Jones: That's perfect clear.

Now that would have affected the subsequent things.

Well, as I was seeing, there is one broad argument here that we shouldn't look to the terminable interest rule.

We think that by squarely and invasively, Senate report language it's contrary to the regulations, it's contrary to the 1953 ruling, no court has gone so far as to argue that you don't apply the terminable interest rule and in fact, as we read the briefs in the Ninth Circuit, it wasn't even contended to the Ninth Circuit that you didn't apply the terminable interest rule, that if you're going to hold for the petitioners, you have to find some way to work them in but you can't disregard.

So that brings us to the second argument.

I think that what has to be the main argument of petitioners and that is when we talk about looking at these conditions, do we look to the date of the decree or do we look to the date of death?

Now, as we pointed out in the situation in 812 (e) (1) (b) on the six months rule, it's imperative that you look to the date of death.

The whole statute is built around looking to the date of death.

The 1948 Senate reports are absolutely clear and repetitive on the point that you must look at the date of death and regulations have always adopted that and in every other context except this widow's allowance people have agreed that it just has to be the date of death and that this has been applied to the detriment of tax payers, and in cases which are much more important than the widow's allowance and we insist that in the terms of symmetry of the statute, you must apply the same rule here but we have to admit as the petitioner's have stated that the tax court and the Fifth Circuit have, after some hesitation and backing and filling, finally come out and said blatantly, well, we're going to go by the date of the decree, and they got to this, we think by dealing with the cases that had to deal with election by will and in our earlier discussions, we distinguish those because typically the widow need only say, I wish to elect against the will, and then she topples over that piece of paper is saved and the executor goes in, and it's enforced.

And that's the typical rule on election against the will and we think that the cases, the Dower case and that group of cases which talk about substitution of Dower and so forth can all be explained in those terms.

Now there's two points, I should mention in closing.

First one, the taxpayer argues both in its brief but before the Ninth Circuit really only argues for the first fourteen months of payment.

We think that there's a fundamental fallacy in the taxpayer's argument for the first fourteen months payment because they say the decree must be related back for purposes of eliminating the condition, but they say, of course you preserve the date of the decree as when the payment is made and all the conditions are fulfilled.

That seems to us to be an inconsistent possession.

You can't take the decree back solely for the purpose of eliminating the conditions and then say the amount paid fourteen months later can be looked at, at that time and having eliminated all the conditions, you can't have it both ways.

But when you date back the decree, what you're really doing is saying, on the date of death, a decree reads you shall have a payment of $3,000 each month that you survive and are un-remarried and that must fail on that ground alone.

If you date back the decree you're given, essentially the will provision, we were discussing earlier.

And then just lastly --

Justice Potter Stewart: You distinguish between the amounts due after the date of the decree, that is between the $42,000 and the additional $30,000?

Mr. John B. Jones: Well, I think there's really no argument at all for the $30,000 and there's very little argument for the $42,000.

Justice Potter Stewart: Well, I assume there is a good argument for the $42,000.

Do you think the $30,000 goes with that or not?

Mr. John B. Jones: The only way you could do it would be to say just by handling the terminable interest doesn't apply.

Justice Potter Stewart: Just to what?

Mr. John B. Jones: The terminable interest rule doesn't apply to the widow's allowance.

If you said that wouldn't make any difference.

All widow's allowances would be allowable.

Justice Felix Frankfurter: Was that the rule before the amendment –-

Mr. John B. Jones: Excuse me?

Justice Felix Frankfurter: Was that the rule before the amendment under the old practice?

Justice Potter Stewart: They are all deductible.

Mr. John B. Jones: They didn't care about that.

Justice Felix Frankfurter: They didn't care whether the date of decree did not end?

Justice Potter Stewart: They are all --

Mr. John B. Jones: -- some of the later statutory provisions have talked about the date of decree, but those have all been rejected and now enacted, discussed.

Just let me close in saying that Judge Chambers in the Ninth circuit and Judge Blackman in the Eighth Circuit, in considering these opinions sort of say, that they're doing it reluctantly.

They agree with their readings alone and find it incapable and I think they're right and they somehow say that it's a shame that it should turn on state law and that we ought to have equality.

Well, I just like to suggest to the court that nothing you can do is going to produce equality.

The State of Kansas has an allowance that's limited to $750.

That's all what's involved in the State of Kansas, and the four people in Kansas aren't going to be able to make much out of whatever this court holds.

But here we have an allowance which is roughly a 100 times higher than could be permitted in the State of Kansas.

And there's a case in the Court of Claims where the widow's allowance was $400,000 and nothing that we could adopt as a rule would put the people in Kansas on a par with the people in California.

And we would submit to the Court that the statute what Congress has put in under the marital deduction does not allow any exceptions for these widow's allowances and that the treatment should follow what the Ninth Circuit has properly said in the Cunha case and in this case.

Chief Justice Earl Warren: Mr. Burks.

Rebuttal of Paul Burks

Mr. Paul Burks: The court mentioned, the counsel correspondent mentioned the six months provision.

That is a statutory provision in Section 812 (e) (1) (d).

It applies only to wills.

It doesn't apply to any inherited right.

If a man dies without a will, the six months provision has no application whatsoever and the statutory right to a widow's allowance is much more is certain than any interest on an estate which a widow might take because it's given preference to the claims of certain creditors and that's a more profitable interest than an inter-state rightist.

Now as to whether or not this Court can do anything about it, I'd like to read from the report of the Senate Finance Committee in 1954 “Your committee rejected a special provision added by the house that allowed widows' allowances to qualify for the marital deduction to the extent paid within one year of the decedent's death”.

Under the present law, many widows' allowances qualify for the marital deduction during deduction without regard to the time of payment.

It is believed without regard to the time of payment.

It is believed that the house bill might raise some questions as to the treatment under the marital deduction of these widows' allowances to the extent that they are not received within one year of the decedent's death and that is the question that's here today and here so far as I know for the first time.

The Court asked how many cases that allowed lump sum payments.

They include United States against First National Bank of Augusta, Candler, Landers, Gale, Rudnick, Patty, Reynolds, Rensenhouse, Phelps against Bookwalter, Gardner's Estate, Avery, Ken against Wisener and many others.

Unless there is an isolated transaction, the lump sum awards have been allowed by many courts and the commissioner is acquiesced in some of those cases.

And more Circuit Courts have decided cases of that nature in favor of the taxpayers and against them, and in the respondent's brief it said, “A marital deduction is allowed for the value of property received under State Law where the widow elects to take against decedent's will,” now that's a fairly a statutory right, “Where under a State Law a widow obtains a fixed right to claim a non-terminable interest at her husband's death the mere procedural requirement of the widow signified her election or filed her claim which she might do immediately, does not make the interest meaningfully contingent.

Her election to take the interest is therefore deemed or relate back to the date of the decedent's death and the marital deduction is permitted with respect to the property actually passing and vesting” and that's what petitioners would like this Court to do.

Justice Potter Stewart: Is the government, there talking about this Connecticut Rule in (Inaudible) to the California Rule?

Mr. Paul Burks: The Connecticut Rule Your Honor was passed in 1961, and I submit that after reading Second National Bank of New Haven against the United States, which appears in 222 Federal Supplement at Page 446, the court will come to no conclusion except that the Connecticut Law was designed solely to take advantage of this lump sum payment doctrine.

Justice Potter Stewart: So be it, I can remember when before the marital deduction when states were considering by statute, turning themselves into community property estates for the same kind of a purpose?

Mr. Paul Burks: Yes, Your Honor, but then I think it stops to be a family allowance payment, the need becomes more of a body for being married rather than a support payment, because it doesn't make any difference, whether it goes to the widow or her estate under Connecticut Law.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: I am arguing for both Your Honor, and I sincerely believe that they should both be allowed under the marital deduction provisions.

That was the intent of Congress, under existing law amounts –-

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: Well, I think the time of payment as in the respondent's brief, the time of payment should relate back to the date of death, but once paid in cash, there is no terminable interest.

There is no other interest in cash.

It's property that belongs permanently to the widow, more permanently than an interstate right to a part of the estate.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: They have Your Honor, but I have also mentioned these cases on Page 15 in the respondent's brief which elect to statute, a statutory right and a statutory right in all reality has much greater value to a widow, because it's referred to other claims than an interstate right, and it's for the property passing to another.

If the property is the payment and she has it in her hand, it isn't going to pass to anyone else.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: No, I don't, Your Honor.

Subject to the condition and limitations of Section 812 (e), and the condition and limitation that is mentioned by counsel for respondent is Section 812 (e) (1) (B) which is entitled life estates and other terminable interests, and I say that it isn't the terminable interest.

It doesn't come within that rule, if the property is regarded as being the payment itself as in reality, it has to be or no widow's allowances are going to be allowed except perhaps under a statute such as that of Connecticut, which really isn't the widow's allowance.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: Certainly or if it would paid in the life estate, I would say it didn't qualify because it wouldn't, it wouldn't go to the surviving spouse then in such a way as to be taxed in the estate of the surviving spouse.

Justice Potter Stewart: No such claim is widow's allowance, (Inaudible) in any state?

Mr. Paul Burks: Conceivably it could be payment from an annuity for life.

It is the way it was paid in bonds in the First National Bank of Augusta case.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: I would say here in effect the court said, on the date of the order, you're entitled of $42,000 plus $3000 a month for 10 months.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: Yes sir, $30,000.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: I don't think I would because –-

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: I think I would go back to the language of Section 812 (b) (5), which says amounts reasonably required and actually expended for the support of the decedent during the administration of the estate.

And the Senate Finance Committee makes it abundantly clear that that was the type of payment that had been made under Section 812 (b) (5), and which was to be continued under the marital deduction provision, but an 812 (b) (5) payment would not have been an award.

It normally would not have been an award other than cash payments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Paul Burks: I would, Your Honor.

I would say that support payments should be for amounts reasonably required and actually expended during the administration of the estate.

I think that's what Congress intended.

I think that the taxpayers and common law estates have been treated badly by the Commissioner of Internal Revenue and by the decisions which held that the property is the entire estate.

It isn't.

The property is what the widow gets in her hand.

Thank you.