Estate of J. Leslie Vogel, Robert G. Partridge, and Elizabeth S. Vogel, Executors v. Commissioner of Internal Revenue

The estate of J. Leslie Vogel, deceased, pending in the California Probate Court, has petitioned us for review of a decision of the tax court approving a deficiency determination made by the Commissioner. The principal question is whether or not all of the property left by the decedent, plus certain property standing in his wife’s name, was community property. The Commissioner and the tax court have held that it was.

I.

It is undisputed that all of the property owned by the Vogels was community before the year 1943. On January 1, 1943, in order to admit his son to the business, and avoid the excess profit tax, the corporation through which Mr. and Mrs. Vogel ran their business was dissolved, and a limited partnership was formed. Each partner, Les, the husband, Elizabeth, the wife, and Les, Jr., had a separate drawing account. The only charges made to Elizabeth’s account were for income taxes, a $100.00 monthly allowance, and a $500.00 monthly payment on their residence. Taxes on this home were charged to the decedent.

On November 1,1946, the business was again incorporated, the shares being equally divided between the three partners. A single drawing account for Mr. and Mrs.…

I concur. I have been bothered here about the application of § 164, Cal.Civ. Code. Apparently the presumption of this section, that “property * * * acquired by a married woman by an instrument in writing * * * is her separate property” cannot be rebutted solely by evidence as to the source of the funds. Ciambetti v. Department of Alcoholic Beverage Control, 161 Cal.App.2d 340 , 326 P.2d 535, 538 ; Gudelj v. Gudelj, 41 Cal.2d 202 , 259 P.2d 656, 662 .

So far as the certificates of stock in the name of the wife are concerned, I would think it proper to hold that those certificates are, like a certificate of registration of an automobile, not “an instrument in writing” within the meaning of § 164. Pacific Telephone & Telegraph Co. v. Wellman, 98 Cal.App.2d 151 , 219 P.2d 506, 509-510 ; In re Inman’s Estate, 148 Cal.App.2d 952 , 307 P.2d 953, 957 .

Aside from the shares of stock involved here, there was the Anzavista Apartments property. 1 The land where these were built was deeded to the wife by an instrument plainly within § 164. Contrary to the suggestion of the Tax Court, there is plain evidence from the son that the funds for acquisition of the apartments came from earnings of…

278 F.2d 548 60-1 USTC P 11,945 ESTATE of J. Leslie VOGEL, Robert G. Partridge, and Elizabeth S. Vogel, Executors, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16304. United States Court of Appeals Ninth Circuit. March 25, 1960, As Amended May 25, 1960. Grant G. Calhoun, Richmond, Cal., for appellants. Charles K. Rice, Asst. Atty. Gen., John J. Pajak, Robert N. Anderson, Lee A. Jackson, Attys., Dept. of Justice, Washington, D.D., for respondent. Before STEPHENS, POPE and KOELSCH, Circuit Judges. STEPHENS, Circuit Judge. 1 The estate of J. Leslie Vogel, deceased, pending in the California Probate Court, has petitioned us for review of a decision of the tax court approving a deficiency determination made by the Commissioner. The principal question is whether or not all of the property left by the decedent, plus certain property standing in his wife's name, was community property. The Commissioner and the tax court have held that it was. I. 2 It is undisputed that all of the property owned by the Vogels was community before the year 1943. On January 1, 1943, in order to admit his son to the business, and avoid the excess profit tax, the corporation through which…