United States v. Howard Past, of the Estate of Edna C. Rosedale Ogg, Deceased

347 F.2d 7 65-1 USTC P 12,317 UNITED STATES of America, Appellant, v. Howard PAST, Executor of the Estate of Edna C. Rosedale Ogg, Deceased, Appellee. No. 19225. United States Court of Appeals Ninth Circuit. May 10, 1965. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Robt. N. Anderson, Loring W. Post, Attys., Dept. of Justice, Washington, D.C., Thomas R. Sheridan, U.S. Atty., Loyal E. Keir, Asst. U.S. Atty., Los Angeles, Cal., for appellant. Carl A. Stutsman, Jr., Stanley E. Tobin, Jack R. White, Hill, Farrer & Burrill, Los Angeles, Cal., for appellee. Before CHAMBERS, HAMLIN and ELY, Circuit Judges. HAMLIN, Circuit Judge. 1 Appellee is the executor of the estate of Edna C. Rosedale Ogg, deceased, who died December 25, 1956. Appellee filed an action in the District Court for the Southern District of California for the return of federal estate taxes in the total sum of $126,505.16 ($108,817.62 being principal and $17,687.54 being interest) theretofore paid by appellee in said estate following the assessment of a deficiency in estate taxes in the above amount. The district court rendered a judgment in favor of appellee in the full amount and appellant filed a timely…

. Appellee is the executor of the estate of Edna C. Rosedale Ogg, deceased, who died December 25, 1956. Appellee filed an action in the District Court for the Southern District of California for the return of federal estate taxes in the total sum of $126,505.16 ($108,817.62 being principal and $17,687.54 being interest) theretofore paid by appellee in said estate following the assessment of a deficiency in estate taxes in the above amount. The district court rendered a judgment in favor of appellee in the full amount and appellant filed a timely appeal. The district court had jurisdiction under 28 U.S.C. § 1346 . This court has jurisdiction under 28 U.S.C. § 1291 . The facts as shown by the record and the findings of the district court are set out below. The decedent and Harry E. Rosedale were married for twenty-five years. In 1954, because of marital difficulties, complicated by the fact that decedent was addicted to alcohol, each employed independent legal counsel for the purpose of negotiating a property settlement. All of the property owned by the Rosedales was held as community property in which under California law each was an equal owner. For many years prior to 1954…

(dissenting).

I agree with the majority that the district court erred in its judgment that decedent’s transfer of property to the trust was made for adequate and full consideration within the meaning of 26 U.S.C. § 2036 . I disagree, however, with the majority’s acceptance of the district court’s finding that each spouse “contributed one-half of the property to the trust.” Of itself, the finding may not be clearly erroneous, but the transactions incident to the separation and divorce of the spouses and their adjustment of their property dispute should be viewed as a whole. It should be the substance of the total result which should control our determination here. For this proposition, the authorities are numerous. Greene v. United States, 237 F.2d 848, 852 (7th Cir. 1956), First National Bank of Shreveport v. United States, 342 F.2d 415 (5th Cir. 1965), Estate of Gregory, 39 T.C. 1012, 1018 (1963). Moreover, in the court below, the burden of proof rested upon the appellee. Germantown Trust Co. v. Lederer, 263 F. 672 (3rd Cir. 1920), Mayes v. United States Trust Co., 280 F. 25 (6th Cir. 1922), Estate of Green, 22 T.C. 728, 732 (1954).

By the property settlement agreement which…