Cory

I respectfully dissent.

The purpose of taxing certain inter vivos transfers under inheritance tax laws is to eliminate tax avoidance (Estate of Thurston (1950) 36 Cal.2d 207, 210 [ 223 P.2d 12 ]). Where the nature of the transfer is testamentary, and the transfer is a substitute for disposition by will or passage by intestacy, an inheritance tax will be levied. (Estate of Bielec (1972) 8 Cal.3d 213, 222 [ 104 Cal.Rptr. 516 , 502 P.2d 12 , 58 A.L.R.3d 1088 ].)

Having these precepts in mind, I cannot agree that the “advancement” here was made in lieu of testamentary disposition, or was testamentary in character, since in fact it was made purely for commercial reasons, to promote and preserve the family business.

The higher tax is being imposed merely because, in her desire to equalize her children’s distributive shares in her estate, Mrs. Garin used the word “advancement.” Had she eschewed such reference, and merely made allowance for the advancement by reducing Henry’s share by specific bequest, no inheritance tax could be imposed on the advancement.

The higher tax, then, becomes a penalty for describing an act which, if it had been merely done and not labeled, could not have…

This is an appeal by the State Controller (hereafter Controller) from an order of the Superior Court of Monterey County fixing the inheritance tax in the estate of Elsie A. Garin, deceased (hereafter decedent).

The report of the inheritance tax referee filed May 5, 1978, treated as an asset of her estate an inter vivos transfer made ostensibly as an advancement (Rev. & Tax. Code, § 13647) from the decedent to her son, Henry P. Garin, in the amount of $200,000 cash plus $56,010 federal gift tax plus $17,683 state gift tax paid by the decedent on the cash gift. The decedent’s estate filed an objection to said report on June 12, 1978.

Thereafter in a hearing before the superior court, the objections were sustained and, on the order of the superior court, the referee filed an *1003 amended report, excluding from the estate the amount of the inter vivos transfer ($200,000 cash) and the prepaid gift taxes. The court confirmed the order and fixed the taxes accordingly. 1 From this report the Controller filed an objection to the inheritance tax referee’s report as amended, and a reply to the objections of the Controller was filed by respondents. Thereafter, on January 5, 1979,…