45 T.C. 323">*323 Respondent determined a deficiency of $ 120,123.90 45 T.C. 323">*324 in the estate tax of the Estate of Robert Rodger Glen, deceased, and also asserted transferee liability in the same amount against Morgan Guaranty Trust Co. of New York as trustee of an inter vivos trust created in 1938 by Robert Rodger Glen, deceased.

Separate petitions were filed by the executrix of the decedent's estate and by Morgan Guaranty Trust Co. of New York (hereinafter sometimes referred to as Morgan Guaranty) as trustee and transferee. The two proceedings initiated thereby have been consolidated for trial, briefing, and opinion.

Pursuant to leave granted, each of the two petitions was amended twice and each of the two answers was amended once. The amended answers asserted an increased deficiency, 1966 U.S. Tax Ct. LEXIS 152">*154 and, inasmuch as this involved the assertion of new matter, the burden of proof thereof is on the respondent.

After abandonment and stipulated settlement of various minor issues raised by the petitions, the only issues remaining for decision are (1) whether certain property transferred in trust by decedent in 1938 with retained life estates is includable in decedent's gross estate under section 2036 of the Internal Revenue Code of 1954¹ or whether all or any portion of said transfers was for adequate and full consideration so as to render section 2036 inapplicable, and (2) whether the value of an outstanding life income interest in one trust should be excluded from the gross estate.

The parties have stipulated that if a deficiency in estate tax is finally determined, petitioner Morgan Guaranty is liable as transferee to an extent determinable, as provided by law, under Rule 50. Various credits, deductions, and other adjustments to the 1966 U.S. Tax Ct. LEXIS 152">*155 gross estate dependent upon our resolution of the principal issues herein will be computed under Rule 50.

FINDINGS OF FACT

Some of the facts have been stipulated. These facts and the exhibits attached thereto are adopted as our findings and incorporated herein by this reference. Some of these facts will be detailed hereinafter in our Findings of Fact.

The decedent, Robert Rodger Glen, died on February 18, 1957, a naturalized U.S. citizen and a resident of California. Decedent's Federal estate tax return was filed with the district director of internal revenue in Los Angeles.

Decedent was survived by Jane S. Durand, his former wife, by Claire Huntington Glen, his wife, and by his son, Robert Story Glen. The petitioner Claire Huntington Glen, decedent's wife, is the executrix 45 T.C. 323">*325 of decedent's estate. The petitioner Morgan Guaranty is the sole trustee of an inter vivos trust created in 1938 by the decedent, which trust will hereinafter be referred to as the Jane S. Durand Trust.

The decedent was born in Scotland in 1892. After becoming an adult he entered the consular service of Great Britain and lived abroad in several different countries. In 1920 he married Jane Story, an American 1966 U.S. Tax Ct. LEXIS 152">*156 citizen, and in that same year their only child, Robert Story Glen, was born.

In late 1936 or early 1937 decedent and JaneStory Glen were having marital difficulties, and as a result Jane left their then home in France and went to New York. There she retained a law firm and determined to institute proceedings to terminate the marital relationship.

Jane Glen's New York counsel consulted other lawyers in Scotland and England as part of their effort to determine in which jurisdiction, among several possibilities, the contemplated divorce action could and should be brought. It was finally concluded that Jane Glen would obtain the most favorable settlement if a Scotch divorce could be obtained, as her property rights were greater under Scotch law than in any other jurisdiction which might be invoked. It was believed that decedent's then domicile was in Scotland and under Scotch law the wife was entitled to receive outright one-third of the husband's personal estate if a divorce was obtained there on the ground of the husband's infidelity.

Discussions were had between Jane Glen, her attorneys, and her mother, as a result of which it was decided that the interests of Jane and the son, Robert 1966 U.S. Tax Ct. LEXIS 152">*157 Story Glen (hereinafter sometimes referred to as Robert), would better be served if an arrangement could be made to have a substantial portion of decedent's property placed in two trusts. Jane Glen was interested in safeguarding the principal for her son and in assuring herself and her son of income for their living expenses. ²

Jane's lawyers carried on extensive negotiations with the attorneys representing decedent. As a part of these negotiations a memorandum dated November 3, 1966 U.S. Tax Ct. LEXIS 152">*158 1937, was sent by one of Jane's attorneys to decedent's New York counsel; it contained, inter alia, the following:

Mrs. G. has declared her intention to sue Major G. for absolute divorce.

She has been advised that it appears that the suit should be brought in the courts of Scotland.

45 T.C. 323">*326 She has also been advised that under Scottish law a wife in whose favor a decree of absolute divorce is granted is entitled substantially to one-third of her spouse's property outright. [Emphasis added.]

However, in order the better to assure her son's future, Mrs. G. would consider an approximately equivalent settlement in trust.

This is on the assumption that the Scottish law permits the parties to a divorce action to agree on a settlement of property questions other than that which the Court would decree if the matter were left to it.

If this assumption is correct, she would consider the following:

(1) Major G. to establish a trust fund of cash or good securities of the value of [$ 333,333] for the benefit of Mrs. G. and their son Robert; the principal of such fund to go to the issue of Robert upon the death of the survivor of Mrs. G. and Robert; the net income to be paid to Mrs. G. during her life, and 1966 U.S. Tax Ct. LEXIS 152">*159 after her death to Robert during his life, if he survives her, provided, that in case Mrs. G. remarries she shall thenceforth receive only $ 6,500 a year and the remainder of the net income shall be paid to Robert or his issue. * * *

(2) Further to protect the son, Major G. is to carry out his indicated intention of creating another trust fund for his own and his son's benefit, substantially as proposed in the draft Deed of Trust prepared by Messrs. Slaughter & May; this trust fund to amount to at least another one-third of his personalty.

After negotiations, the New York attorneys for husband and wife agreed that two-thirds of decedent's personal property, estimated to be approximately valued at $ 1 million, would be placed in trust for the benefit of Jane Glen, Robert Story Glen, and decedent. It was agreed that one-third would be placed in trust for Jane and Robert as outlined in the memorandum quoted above and one-third in a trust for decedent and his son as also outlined. It was estimated that Jane's income from the trust for her benefit would be about $ 13,000 per year, and one-half of that amount if she remarried, for life.

Counsel for the two spouses also agreed that until the 1966 U.S. Tax Ct. LEXIS 152">*160 trust for her benefit had been set up, the allowance which decedent had been making his wife of 1,000 pounds sterling ³ every 3 months for living expenses would be continued. This allowance, which had commenced at the time of their separation in late 1936 or early 1937, was in fact continued through the first 5 months of 1938. Jane S. Glen had no estate or property and was dependent on this allowance as her basic support for living expenses.

Toward the end of January of 1938, after New York counsel for both parties had agreed on a basis of settlement, Jane's lawyers instructed her solicitors in Scotland to commence the divorce action there. Counsel for both decedent and Jane went to Scotland in April of 1938 to consult directly with Scottish lawyers for both spouses about the documentary implementation of the agreement reached in New York. There they discovered that decedent had already set up a trust in Scotland for the principal benefit of Robert Story Glen and 45 T.C. 323">*327 his issue. Decedent had placed in this 1966 U.S. Tax Ct. LEXIS 152">*161 trust, hereinafter referred to as the Scotch trust, property having a total value in U.S. dollars of $ 171,780.30.

The Scotch trust had been created by decedent on March 31, 1938, the same day on which Jane's divorce action in Scotland was begun, without the knowledge of his wife or her attorneys. The trust agreement creating the Scotch trust recited that it had been created with the view of making provision for the son, Robert Story Glen, and his issue, and the parties have stipulated that it was established in contemplation of divorce.

Because decedent had established the Scotch trust independently of the settlement negotiated in New York, that plan was revised somewhat, reducing decedent's original obligations under the negotiated plan in order to make allowance to him for what he had already given up in establishing the Scotch trust. The details of the necessary adjustments to conform with the agreement of New York counsel were worked out between those counsel during their visit to Scotland.

On May 9, 1938, in contemplation of divorce and pursuant to the above-described negotiations and settlement between husband and wife through counsel, decedent created two trusts, hereinafter 1966 U.S. Tax Ct. LEXIS 152">*162 referred to as the Jane S. Durand Trust and the Robert Story Glen Trust, respectively. The actual establishment of the trusts was delayed until the settlement agreement (described as a discharge deed) was executed by Jane. Decedent executed the trusts but they were held in escrow and not effected until Jane's counsel returned to New York, obtained Jane's signature on the settlement, and then delivered it to Glen's New York counsel.

These two trusts provided as follows:

1. Jane S. Durand Trust. -- Entire trust income to be paid to Jane S. Glen during her lifetime and thereafter to the decedent during his lifetime, subject to the proviso that upon the remarriage of Jane S. Glen the trust income up to but not exceeding $ 6,500 per year was to be paid to her and the balance thereof was to be paid to the decedent-settlor. Upon the decedent's death the income to which he was entitled was to be paid to his son, Robert Story Glen, during his lifetime. Upon the death of the survivor of the decedent, Jane S. Glen, and Robert Story Glen, the trust is to terminate and the principal to be distributed to the issue of Robert Story Glen.

2. Robert Story Glen Trust. -- Trust income to be paid to 1966 U.S. Tax Ct. LEXIS 152">*163 decedent during his lifetime. Upon decedent's death, the son, Robert Story Glen, and the son's widow and issue are the sole beneficiaries. Jane S. Glen had no interest in this trust.

The original corpus of the Jane S. Durand Trust consisted of British securities and cash having an aggregate value in U.S. dollars 45 T.C. 323">*328 of $ 331,330. The original corpus of the Robert Story Glen Trust consisted of British securities and cash having an aggregate value in U.S. dollars of $ 155,995.11. At the decedent's death the aggregate gross values of the assets in these two trusts were $ 468,750 and $ 80,843.93, respectively.

The decedent retained no income or other interest in the Scotch trust; he reserved and retained a life income interest in the Robert Story Glen Trust and he retained a limited life income interest and the right to all of the income for life, if Jane predeceased him, in the Jane S. Durand Trust. It was because of his retained interests in the two trusts last above described that the respondent has determined their inclusion in decedent's estate. When the trusts were created, the value of the remainder interests transferred by decedent to the Robert Story Glen Trust was $ 68,460; 1966 U.S. Tax Ct. LEXIS 152">*164 the then value of the income and remainder interests transferred by decedent to the Jane S. Durand Trust was $ 190,131 (Jane's income interests) and $ 95,237 (remainders). The value of decedent's retained income interests in these two trusts was therefore --

Under date of May 10, 1938, in contemplation of divorce, decedent and Jane S. Glen executed a settlement agreement which contained, inter alia, the following provisions:

First: Mrs. Glen shall out of the provision made for her by the Settlement or otherwise pay for all such board lodging clothes medical attendance and things whatsoever as she may hereafter require or obtain and shall in all respects support and maintain herself.

Second: Mrs. Glen shall be entitled to retain as her separate property all personal chattels and effects now in her possession or under her sole and absolute control.

Third: Mr. Glen shall be entitled to the sole custody and control of the Son during his minority and Mrs. Glen shall in no way interfere with the management or education of the Son.

Fourth: Mrs. Glen may at all convenient and reasonable times have access to and communicate with the Son.

* 1966 U.S. Tax Ct. LEXIS 152">*165 * * *

Sixth: Mrs. Glen hereby acknowledges that the provision made for her hereunder and under the Settlement shall be in absolute satisfaction of all claims whatsoever which she may have now or may at any future time have against Mr. Glen or his estate whether arising in connection with any matrimonial proceedings or against the estate and effects of Mr. Glen upon his death under whatsoever law any such claims may arise except that Mr. Glen agrees to pay Mrs. Glen's Counsel fees of Ten Thousand Dollars and disbursements estimated at Six Thousand Five Hundred Dollars and accordingly if Mr. Glen shall die at any time hereafter then his real and personal estate of which he shall not have disposed by Will or Codicil shall go and belong to the person or persons who would have become entitled thereto if Mrs. Glen had predeceased him and Mrs. Glen shall permit his Will to be proved or administration to his estate and effects to be taken out by such person or persons, and she hereby 45 T.C. 323">*329 discharges all claims of jus relictae or terce or other claims against Mr. Glen's estate wherever situated * * *

This agreement is the so-called discharge deed referred to above, executed by the parties before 1966 U.S. Tax Ct. LEXIS 152">*166 the two trusts here involved were released from escrow and effected.

On July 14, 1938, a decree of divorce was entered in the Court of Session, the Supreme Court of Scotland, divorcing decedent and Jane S. Glen on the ground of the husband's adultery. This decree contained one short paragraph and made no mention of any property or support rights or any property settlement agreement, the trusts having been duly created and the settlement agreement having been fully executed by the parties prior to that date.

The parties have agreed by stipulation filed herein that the law of Scotland as it existed during 1938 was to the following effect on the following points:

(a) Prior to the granting of a divorce, a husband had a legal obligation to support his wife.

(b) After the entry of the Scotch divorce decree, the husband had no further legal obligation to support his wife, whether or not he had made a property settlement with her prior to the entry of the divorce decree, or whether or not the Court made any order with respect to the division of property at or about the time of the entry of the divorce decree.

(c) Where a divorce was granted in favor of a wife with a child, the innocent wife was 1966 U.S. Tax Ct. LEXIS 152">*167 entitled to one-third of the husband's moveable estate as it existed at the time of the divorce decree, plus a life interest in one-third of the husband's immoveable property (realty). The life interest of the wife in one-third of the husband's realty might take the form of periodic income received by the wife in connection with this interest. The aforesaid right of the wife to a portion of the husband's property, both moveable and immoveable, upon divorce is in the nature of a capital payment from the husband's accumulated wealth rather than from his income.

(d) If a husband had no capital, the wife who had successfully obtained a divorce would normally take no property rights on divorce, nor did the law take into account the fact that the husband might be earning a substantial wage or salary.

(e) In a successful action by an innocent wife against a guilty husband for a legal separation, rather than a divorce, in absence of an agreement for support between the parties, the court may order the husband to pay to the wife a portion of his income as alimony, for the support and maintenance of herself and of any minor children. This alimony would be measured by the cost of maintaining 1966 U.S. Tax Ct. LEXIS 152">*168 the wife in the station in life to which husband belongs, based approximately on one-third of the husband's gross income. This alimony, aside from the portion payable on account of minor children, would normally be payable until the first to occur of the death of the husband, death of the wife, or entry of a divorce decree.

(f) The fact that the innocent wife had pending a suit for divorce in the Scotch courts would not bar her from attempting to obtain a legal separation rather than a divorce, if she chose to abandon the divorce action. In the event of legal separation, neither husband nor wife would be free to remarry as long as the other was alive.

45 T.C. 323">*330 (g) After entry of the decree of divorce on July 14, 1938, Robert Rodger Glen had no further legal obligation to support his former wife, Jane Story Glen, under the law of any jurisdiction.

(h) Upon the entry of the divorce decree by the Scotch court on July 14, 1938, Jane S. Durand did not become entitled to receive her capital interest under Scotch law in her husband's property, as set forth above, because she had already relinquished her right thereto; this was provided for in the Agreement between herself and her husband.

On or about 1966 U.S. Tax Ct. LEXIS 152">*169 July 18, 1938, the decedent married Claire Huntington, an American citizen, and thereafter took up residence in California. In 1951 he was naturalized an American citizen. On July 25, 1938, Jane S. Glen married Harry Durand and thereafter resumed her American citizenship. After her remarriage, Jane S. Glen was known as Jane S. Durand.

The net income of the Jane S. Durand Trust exceeded $ 6,500 each year from Jane's remarriage to the death of decedent, with the result that $ 6,500 per year was paid to Jane S. Durand and the balance of the net income was paid to decedent.

FINDING OF ULTIMATE FACT

Jane S. Glen had an immediate right upon divorce in 1938 to an award of $ 333,333 from decedent's personal property. She also had a right to life income from one-third of his real estate. She transferred and surrendered these rights together with all of her other rights against Robert Rodger Glen arising out of the marital relationship, including claims of terce and jus relictae, in consideration for the establishment of three trusts by her husband for her benefit and for the benefit of her son. To the extent of at least $ 333,333 there was adequate consideration in money or money's worth 1966 U.S. Tax Ct. LEXIS 152">*170 for the three transfers in trust.

OPINION

Respondent has included in the gross estate of decedent the value of the trust corpus of the Jane S. Durand Trust and the value of the trust corpus of the Robert Story Glen Trust. This action was taken pursuant to section 2036 of the 1954 Internal Revenue Code. ^{41966 U.S. Tax Ct. LEXIS 152">*171} Section 2036 provides, generally, that even though property may have been transferred inter vivos, if the transferor retains a life estate (i.e., the beneficial enjoyment during his lifetime) in the property transferred, 45 T.C. 323">*331 that property will still be included in his gross estate -- as if no transfer had ever been made. Decedent had life interests in both the Jane S. Durand Trust and the Robert Story Glen Trust.

It is petitioner's contention that section 2036 does not cause the two trusts to be includable in decedent's estate because the transfer to those trusts was made "for an adequate and full consideration in money or money's worth." Alternatively, petitioners contend that if the transfer was not made for "adequate and full consideration," nonetheless, there was a substantial consideration received and under section 2043 (a)^{51966 U.S. Tax Ct. LEXIS 152">*172} the gross estate should not include the portion of the trusts for which consideration was received.

The two trusts here involved, along with the Scotch trust, were established by decedent in contemplation of divorce. The trust arrangements were arrived at as a result of bargaining between decedent and his former wife and were intended as a complete settlement of any claims the wife may have had arising out of the divorce. Therefore, petitioners argue that the relinquishment by the wife of her legal rights upon divorce constituted full and adequate consideration for the trusts. It is alleged that the wife relinquished the following rights:

1. Right to support payments.

2. Right to one-third of husband's property outright upon divorce.

3. Right to inherit from husband's estate upon death.

We disagree with petitioners' reasoning behind their assertions concerning the rights which were given up. The divorce here involved took place in Scotland. While the negotiations began some months before the Scotch divorce action was instituted, the settlement agreement was entered into and the trusts were established subsequent to the commencement of that action for divorce. 1966 U.S. Tax Ct. LEXIS 152">*173 Therefore, whatever rights Jane Glen had arising out of divorce were defined by the law of Scotland. The parties have stipulated as to the relevant law effective in Scotland in 1938. Under that law, as our findings indicate, a wife was entitled to one-third of her husband's personal property outright upon divorce; she was entitled to no support payments after divorce, and the stipulation as to the law of Scotland mentions nothing about the retention after divorce of any right to inherit anything from the former husband's estate when he dies. It is stipulated, however, that the law of Scotland did provide that a wife was also entitled to a life interest in one-third of the husband's real property, 45 T.C. 323">*332 which might take the form of periodic income. Hence, the only rights on divorce which Jane Glen relinquished were her rights to one-third of decedent's personal property, which property was of a total value of $ 1 million at that time, and her right to a life interest in one-third of his realty, which was substantial, but the value of which is not disclosed by the record. (Decedent then owned a large home at Glasgow and two houses at Biarritz, France.)

The record contains evidence which 1966 U.S. Tax Ct. LEXIS 152">*174 indicates that Jane Glen could have brought the divorce proceeding in one or more jurisdictions other than Scotland ⁶ and that she and her attorneys considered other possibilities but chose Scotland as the jurisdiction which would yield her the greatest benefit. Petitioners apparently make the argument that even though Jane Glen had no postdivorce support rights under Scottish law, she had such rights under the laws of one or more of the other jurisdictions in which she might have commenced a divorce action, and the relinquishment of these rights is part of the consideration flowing to decedent. We reject this approach.

It may be true that in bargaining for the divorce settlement decedent sought release by his wife of any and all rights she might have had in any jurisdiction. However, if no settlement had been arrived at and the wife's claims against her divorced husband had been defined by law, the totality of these claims could be no greater than the rights granted in any one jurisdiction. Thus, the value received by decedent in 1966 U.S. Tax Ct. LEXIS 152">*175 the settlement agreement can be no greater than the release by the wife of her rights in one jurisdiction. Although the wife may release her claims in all jurisdictions, she could not have asserted all of those claims simultaneously.

A similar defect underlies petitioners' theory that the wife relinquished the right to support payments which she would have had if she had chosen not to sue for divorce but merely remain separated. While Jane Glen did relinquish both her right to support, which would exist if she remained married, and her right to one-third of decedent's property if she were to be divorced, since Jane could not have exercised both rights, but only one or the other, the consideration received by decedent is no more than the value of the greater of the two -- not the sum of both. Thus, freedom from the greater of these two liabilities was all that decedent really received on entering the settlement agreement. The record herein indicates that the potential liability for one-third of his personal property was the greater of the two.

In the instant case the divorce proceeding had already begun in Scotland at the time of the settlement agreement. The record indicates that 1966 U.S. Tax Ct. LEXIS 152">*176 the divorce was sought in Scotland because that jurisdiction 45 T.C. 323">*333 provided Jane Glen with the most favorable legal rights upon divorce. Hence, we hold that the consideration flowing to decedent for his transfers under the 1938 settlement agreement could be no more than the release by Jane Glen of her rights upon divorce under Scotch law.

The principal issue in this case is whether the release by Jane Glen of her rights under Scotch law can be regarded as "consideration in money or money's worth" for purposes of section 2036. Respondent relies heavily on section 2043(b) of the 1954 Code, which provides as follows:

(b) Marital Rights Not Treated as Consideration. -- For purposes of this chapter, a relinquishment or promised relinquishment of dower or curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration "in money or money's worth."

At first blush this section appears to cover the instant case and prohibit the release by Jane Glen of her rights under Scotch law from serving as consideration. However, the proper interpretation and application of section 2043(b)1966 U.S. Tax Ct. LEXIS 152">*177 in a case like the instant one requires consideration of all other relevant statutory provisions and a thorough analysis of prior relevant case law and statutory history. As we very recently observed in Estate of Hubert Keller, 44 T.C. 851">44 T.C. 851 (1965), section 2043 (b) is difficult to apply despite its definite language because of both its legislative history and the treatment of it in court decisions and respondent's rulings.

The provision which is presently embodied in section 2043(b) was initially enacted as part of the Revenue Act of 1932. Its purpose was to eliminate a particular form of estate tax avoidance which involved the contractual conversion of a wife's dower (or other property rights she may have as surviving spouse) into a deductible claim against the gross estate. The following excerpt from the report of the Senate Finance Committee, S. Rept. No. 665, 72d Cong., 1st Sess., p. 50, 1939-1 C.B. (Part 2) 496, 532, with respect to the 1932 bill, makes quite clear the legislative intent:

This amendment excludes, in determining "consideration in money or money's worth," the value of a relinquished, or a promised relinquishment of, dower, curtesy, or other marital rights in decedent's 1966 U.S. Tax Ct. LEXIS 152">*178 property. Section 302 (a) and (b) of the 1926 Act require the value of such an interest to be included in the gross estate, and, if its value may, in whole or in part, constitute a consideration for an otherwise taxable transfer (as has been held to be so), or an otherwise unallowable deduction from the gross estate, the effect produced amounts to a subversion of the legislative intent expressed in section 302 (a) and (b).

For example, a decedent dies leaving an estate of $ 1,500,000 (after payment of all charges), and under the State law the surviving spouse is entitled to one-third, or $ 500,000, of which she can not be deprived by will without her consent. Under existing law the estate is entitled to no deduction on account of her 45 T.C. 323">*334 statutory rights, but, if she and decedent had entered into a contract by which she was to receive from his estate a stated sum in consideration of a waiver of her statutory rights, the amount due her under the contract might be held a deductible claim against the estate as having been contracted for an adequate and full consideration in money's worth, namely, the value of her waived marital rights.

The Code section was aimed at cases involving complicity 1966 U.S. Tax Ct. LEXIS 152">*179 between husband and wife who remain married and who are merely attempting to avoid estate tax; the situation in which a spouse relinquishes marital rights pursuant to a divorce, when husband and wife are most likely to be dealing at arm's length, was not mentioned in the committee report. It should also be noted that the section is made specifically applicable only to the estate tax and is not by its terms applicable to the gift tax.

In Merrill v. Fahs, 324 U.S. 308">324 U.S. 308 (1945), the Supreme Court considered the question whether the release of marital rights should be deemed to constitute consideration in money or money's worth for gift tax purposes, the gift tax statute being silent on the point. The Court held that the gift tax and estate tax statutes should be interpreted "harmoniously," and the phrase "adequate and full consideration" should be deemed to have the same meaning in both statutes. Thus, in effect the Court held that the gift tax statute should be deemed to contain the same provision (now sec. 2043(b)) that Congress had inserted in the estate tax statute. That holding was later explained in the majority opinion in Harris v. Commissioner, 340 U.S. 106">340 U.S. 106 (1950), as follows 1966 U.S. Tax Ct. LEXIS 152">*180 (pp. 107-108):

The federal estate tax and the federal gift tax, as held in a line of cases ending with Commissioner v. Wemyss, 324 U.S. 303">324 U.S. 303, and Merrill v. Fahs, 324 U.S. 308">324 U.S. 308, are construed in pari materia, since the purpose of the gift tax is to complement the estate tax by preventing tax-free depletion of the transferor's estate during his lifetime. Both the gift tax n1 and the estate tax n2 exclude transfers made for "an adequate and full consideration in money or money's worth." In the estate tax this requirement is limited to deductions for claims based upon "a promise or agreement"; n3 but the consideration for the "promise or agreement" may not be the release of marital rights in the decedent's property. n4 In the Wemyss and Merrill cases the question was whether the gift tax was applicable to premarital property settlements. If the standards of the estate tax were to be applied ex proprio vigore in gift tax cases, those transfers would be taxable because there was a "promise or agreement" touching marital rights in property. We sustained that the tax, thus giving "adequate and full consideration in money or money's worth" the same meaning under both statutes insofar as premarital 1966 U.S. Tax Ct. LEXIS 152">*181 property settlements or agreements are concerned. [Footnotes omitted.]

While section 2043(b) served a very useful purpose in eliminating the kind of tax avoidance described in the committee report quoted above, its applicability to a spouse's release of various rights on divorce has raised serious questions. Although its language seems to apply to a release of rights on divorce, the evil which the section attacks is not often present in the usual divorce situation. Unlike the classic 45 T.C. 323">*335 2043(b) situation described above, in such a settlement agreement the parties are usually hostile and, more often than not, acting at arm's length, with the wife seeking as much of her husband's property as she can get and the husband striving to part with as little as he can under prevailing divorce law. In such a posture it is difficult to maintain that the husband does not receive any money's-worth consideration for what he may transfer to his wife under a property settlement agreement. If an agreement were not reached the husband would be faced with a liability to the divorced wife in an amount prescribed by the divorce court under the law of the jurisdiction granting the divorce. Hence, by entering 1966 U.S. Tax Ct. LEXIS 152">*182 into a settlement agreement he does truly receive consideration for what he gives up equivalent to the value of the release from what his liability would have been under local law.

The point here made was stated quite cogently by the First Circuit Court of Appeals in McMurtry v. Commissioner, 203 F.2d 659 (C.A. 1, 1953):

Property settlements in contemplation of divorce lack the familiar characteristics of a gift. They are usually the product of arm's-length bargaining negotiations between the parties or their representatives. If the parties cannot work out and submit to the divorce court the terms of an agreed property settlement -- which they might naturally prefer to do if possible -- the divorce court, if empowered by state law to do so, will make one for them. n1 Therefore in a real sense such settlement agreements are not "voluntary", nor in the donative spirit, but rather are made under the compulsion of the impending divorce decree, the marriage having gone on the rocks. The motive of such transfers is certainly not to deplete the estate inter vivos, so as to escape ultimate estate taxes upon death. * * * [Footnote omitted.]

See also United States v. Davis, 370 U.S. 65">370 U.S. 65, fn. 6 (1962).

It 1966 U.S. Tax Ct. LEXIS 152">*183 is, we believe, largely because of an unexpressed recognition of the distinction just described that the Commissioner himself and courts, including the Supreme Court, have held section 2043(b) inapplicable in certain situations involving settlements pursuant to divorce.

In E.T. 19, 1946-2 C.B. 166, the Commissioner announced that for both estate and gift tax purposes he would consider the relinquishment of a right to support by a spouse pursuant to legal separation agreements or divorce decrees as an adequate and full consideration to the extent of the value of the right to support. This ruling points out that a transfer in consideration of the relinquishment of a right to support does not deplete the transferor's estate since the transferor would have to expend the amount transferred to discharge the obligation of support if the transfer were not made. Thus, to the extent that a settlement agreement pursuant to divorce involves the wife's relinquishment of support rights, there is consideration received for the transfer of property to the wife under the agreement.

In 340 U.S. 106">Harris v. Commissioner, supra, the Supreme Court declined to carry over the principle of the predecessor of section 2043(b)1966 U.S. Tax Ct. LEXIS 152">*184 in a gift 45 T.C. 323">*336 tax case involving another divorce agreement situation. There it was held that when an agreement settling marital property rights is incorporated into the divorce decree there is then deemed to be consideration for the transfers to the wife under the agreement. This is on the theory that once the divorce decree is issued, transfers made thereafter are not voluntary transfers pursuant to the promise or agreement, but constitute involuntary transfers pursuant to the judicial decree.

The result of Harris, a gift tax case, was further extended by the Commissioner in Rev. Rul. 60-160, 1960-1 C.B. 374. In this ruling E.T. 19 was modified. The rationale of Harris was applied to section 2043(b), and the estate tax provisions were interpreted so as to conform with the gift tax result. Furthermore, this Court in Estate of Myles C. Watson, 20 T.C. 386">20 T.C. 386 (1953), affd. 216 F.2d 941 (C.A. 2, 1954), held that where a separation agreement was incorporated in a divorce decree, the divorced wife's claim against the decedent's estate was founded on the divorce decree rather than the agreement, and was properly deductible from the gross estate.

Remarks of the Supreme Court from as recently 1966 U.S. Tax Ct. LEXIS 152">*185 as 1962 clearly reflect the High Court's view that in a very real sense the taxpayer receives something of value when he makes a transfer in exchange for release of a spouse's rights at the time of divorce. Although 370 U.S. 65">United States v. Davis, supra, was an income tax case, the following language from footnote 6 therein is, nonetheless, highly pertinent here:

Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. * * *

Other courts participated in the course of events which has gradually but unmistakably eroded section 2043(b)'s applicability in the divorce situation. In Commissioner v. Mesta, 123 F.2d 986 (C.A. 3, 1941), another income tax case, reversing 42 B.T.A. 933">42 B.T.A. 933 (1940), the court in discussing a divorce settlement observed:

We think that we may make the practical assumption that a man who spends money or gives property of a fixed value for an unliquidated claim is getting his money's worth. ^{71966 U.S. Tax Ct. LEXIS 152">*186}

In Beecher v. United States, 280 F.2d 202, 204 (C.A. 3, 1960), a subsequent estate tax case involving the estate of John R. Geary (the taxpayer who was petitioner in the gift tax case cited in the footnote), it was stipulated that the transfers from decedent to his two sons made pursuant to a divorce settlement with his wife were made for adequate 45 T.C. 323">*337 and full consideration in money or money's worth. See also Past v.United States, an unreported case ( S.D. Cal. 1963, 13 A.F.T.R.2d (RIA) 1800, 63-2U.S.T.C. par. 12,189), revd. 347 F.2d 7 (C.A. 9, 1965).

In action subsequent to 340 U.S. 106">Harris v. Commissioner, supra, Congress gave approval to the position adopted by the courts and extended the Harris principle of recognizing the reality of consideration in divorce settlements by adding a new section to the gift tax law. This new legislation 1966 U.S. Tax Ct. LEXIS 152">*187 also recognizes that money's worth consideration in fact does flow to a husband in a property settlement incident to divorce, whether or not the transfers result from the divorce decree itself or from the agreement of the parties settling their marital rights. This new provision, section 2516, provides as follows:

SEC. 2516. CERTAIN PROPERTY SETTLEMENTS.

Where husband and wife enter into a written agreement relative to their marital and property rights and divorce occurs within 2 years thereafter (whether or not such agreement is approved by the divorce decree), any transfers of property or interests in property made pursuant to such agreement --

(1) to either spouse in settlement of his or her marital or property rights, or

(2) to provide a reasonable allowance for the support of issue of the marriage during minority,

Drennen, J., dissenting: I agree with the first part of Judge Tannenwald's dissent concerning the question of consideration, but I am not certain that he reaches the correct conclusion with respect to allocation of the consideration and the amount to be excluded from the gross estate. 1966 U.S. Tax Ct. LEXIS 152">*216 I am inclined to take the view that $ 190,131 should be excluded because that is the amount of the consideration received by decedent for the interest transferred to his wife and the consideration she paid for what she received for herself. Of course, this means I also disagree with the allocation made in the majority opinion.

45 T.C. 323">*349 Tannenwald, J., dissenting: It seems to me that the majority has been beguiled by Scottish law into permitting a deduction from the gross estate which, absent the local statute involved, would not be allowable. I also believe that even if the majority is correct on the question of consideration, the method of allocation which it adopts is erroneous.

I am convinced that the majority decision can be supported only by importing section 2516 of the Internal Revenue Code of 1954 into the estate tax provisions, or by extending the rationale of Harris v. Commissioner, 340 U.S. 106">340 U.S. 106 (1950), beyond its permissible limits. Either approach, in my opinion, constitutes unjustifiable indulgence in judicial legislation.

In the Robert Story Glen Trust and in the Jane S. Durand Trust, decedent reserved life estates, one primary and one secondary. 1966 U.S. Tax Ct. LEXIS 152">*217 Section 2036 of the Internal Revenue Code of 1954 requires the inclusion of the principal of such trusts in the gross estate except to the extent that the transfers by which such trusts were established were made for "a consideration in money or money's worth" within the meaning of section 2043. Subsection (b) of section 2043 specifically provides that "a relinquishment * * * of dower or curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent's property or estate, shall not be considered to any extent a consideration 'in money or money's worth.'"

The basic question therefore is: What were the rights which decedent's former wife, Jane Glen, had and which she surrendered in exchange for the provisions of the divorce settlement? The majority holds that, since under Scottish law she was entitled upon divorce to one-third of decedent's movable estate, she surrendered at least that much. I disagree.

The mere fact that a right is contained in a statute is not determinative. Waivers of statutory rights of election in the event of death are specifically excluded from consideration by section 2043(b).

The majority refers to the release 1966 U.S. Tax Ct. LEXIS 152">*218 by decedent's former wife "of her rights upon divorce," holding that this is what she gave up and that, to this extent, decedent received consideration. The hard fact is that the right of Jane Glen to one-third of the movable estate under Scottish law could not come into existence until the divorce occurred. Consequently, although divorce was contemplated, she had no right to that one-third when the settlement agreement was entered into and the transfers in trust made in May of 1938. It is significant that the agreement was in no manner contingent upon a divorce decree; it was binding upon the parties 3 months prior to the decree. If the facts in this case were that the divorce had never taken place because decedent 45 T.C. 323">*350 had died immediately following the establishment of the trusts (or there had been a subsequent reconciliation followed by decedent's death), the agreement and transfers in trust would nevertheless have remained effective. I doubt that under such circumstances we would hold that the right to a full one-third would constitute consideration.

It is, of course, true that many disputed claims are settled prior to the rendition of judgment or, indeed, even prior to the commencement 1966 U.S. Tax Ct. LEXIS 152">*219 of a lawsuit, and that in many such situations there is consideration flowing between the parties. But in each of these cases what is being settled is a right asserted to be enforceable at the time of the settlement. ¹ There is a difference in marital situations. A divorce decree changes the marital status and may indeed create rights the subsequent release of which would constitute adequate and full consideration. But until the decree is entered many of those rights do not exist and therefore their earlier release does not constitute consideration within the meaning of the statute. See McMurtry v. Commissioner, 203 F.2d 659, 664 (C.A. 1, 1953), modifying 16 T.C. 168">16 T.C. 168 (1951); Farid-Es-Sultaneh v. Commissioner, 160 F.2d 812, 815 (C.A. 2, 1947) (Judge Clark dissenting), reversing 6 T.C. 652">6 T.C. 652 (1946).

In my opinion, we must look to the rights Jane Glen possessed in May of 1938. 1966 U.S. Tax Ct. LEXIS 152">*220 Those rights were (1) an inchoate right of dower in the husband's realty otherwise known under Scottish law as terce, (2) an inchoate right to inherit one-third of the decedent's personal property, otherwise known under Scottish law as jus relictae, and (3) the right of a wife to support. Cloag and Henderson, Introduction to the Law of Scotland, pp. 525-531 (6th ed. 1956). These are the rights she gave up, not a statutory substitute for them which she would become entitled to only upon divorce.

The only one of those rights which qualifies as adequate and full consideration is the right of support. See E.T. 19, 1946-2 C.B. 166, in which respondent recognized that release of support rights by a wife was consideration and expressly stated that he would no longer follow the cases relied upon in Estate of Robert Manning McKeon, 25 T.C. 697">25 T.C. 697. It is true that the stipulation of the parties states that under Scottish law a divorced wife is not entitled to support. But a wife is entitled to support prior to divorce and the Scottish law provides that in the case of separation the wife is entitled to one-third of the husband's gross income, until the first to occur of the death of the husband, 1966 U.S. Tax Ct. LEXIS 152">*221 the death of the wife, or the entry of a divorce decree. We have no probative evidence in the record of the decedent's income or property other than the fact that he had $ 1 million of movable assets. On this 45 T.C. 323">*351 basis, I think it reasonable to hold that at the minimum Jane Glen relinquished as part of the divorce settlement the right to one-third of the income on $ 1 million until her death or remarriage ^{21966 U.S. Tax Ct. LEXIS 152">*222} or until the decedent's death, whichever first occurred, and that at least to this extent the statutory right to one-third outright was in the nature of a substitute for the right of support.

Jane Glen, if she lived, was entitled to receive payments out of the income of the Jane S. Durand Trust for periods extending beyond her remarriage or decedent's death and, to that extent, the value of her interest exceeded her technical right of support as a wife. However, I do not think we should attempt to refine the value of her support rights that closely. Perhaps if she had settled only for payments during the period of decedent's legal obligation she would have received an interest of the same value as she actually received. The commuted value of the full interest transferred to Jane Glen has been stipulated to be $ 190,131. I would hold that to this extent decedent received consideration. Edward B. McLean, 11 T.C. 543">11 T.C. 543 (1948); cf. Meyer's Estate v. Commissioner, 110 F.2d 367, 369 (C.A. 2, 1940) (Judge Hand dissenting), affirming a Memorandum Opinion of this Court, certiorari denied 310 U.S. 651">310 U.S. 651.

Even if the majority is correct that decedent furnished 1966 U.S. Tax Ct. LEXIS 152">*223 consideration to the extent of the full one-third of $ 1 million, I would not allow a deduction for the excess over $ 190,131 which decedent put in trust for the son. It seems to me that we ought not to involve ourselves in whether the transfers for the benefit of the son were motivated by the generosity of decedent or that of his former wife. To do so would be an unwarranted probing of that "elusive state of mind," which the Supreme Court has held to be contrary to the intent of Congress. Commissioner v. Wemyss, 324 U.S. 303">324 U.S. 303 (1945); see Estate of Hubert Keller, 44 T.C. 851">44 T.C. 851, 44 T.C. 851">860 (1965). As I have already pointed out, the right to the full one-third never vested in decedent's former wife. She was not entitled to it until the divorce decree was entered and by that time she had waived it. There is no more of a constructive transfer here from Jane Glen to the son than there is when a legatee renounces a bequest under a will or a widow waives her right of election or her right to take in intestacy. Brown v. Routzahn, 45 T.C. 323">*352 63 F.2d 914 (C.A. 6, 1933), certiorari denied 290 U.S. 641">290 U.S. 641; sec. 25.2511-1 (c), Gift Tax Regs.

340 U.S. 106">Harris v. Commissioner, supra, in my opinion, has no application to the 1966 U.S. Tax Ct. LEXIS 152">*224 instant situation. That case involved the question of importing into the gift tax the "founded upon a promise or agreement" requirement of section 812(b) of the Internal Revenue Code of 1939 (the predecessor of section 2053(c)(1)(A) of the Internal Revenue Code of 1954). Neither section is involved in the instant case. The operative part of the opinion of the Supreme Court in Harris at no point states that there was consideration for the transfer or that the divorce decree constituted such consideration. In fact the Court grounded its decision on the conclusion that, because of the particular statutory provision, the divorce decree was the "operative fact." See 340 U.S. 106">340 U.S. at 110-111. In short, the presence or absence of consideration was wholly immaterial -- at most the decree was a substitute for, or in lieu of, consideration.

The divorce decree herein did not incorporate or otherwise deal with the marital settlement agreement between decedent and his former wife. Moreover, there is no evidence that the divorce court had any power to vary that agreement, a factor which has been considered significant in cases decided subsequent to Harris. McMurtry v. Commissioner, supra;Estate of Myles C. Watson, 20 T.C. 386">20 T.C. 386 (1953), 1966 U.S. Tax Ct. LEXIS 152">*225 affd. 216 F.2d 941 (C.A. 2, 1954); Rev. Rul. 60-160, 1960-1 C.B. 374.

Finally, the provision discussed in 340 U.S. 106">Harris v. Commissioner, supra, deals with claims against the estate. In this case, we are dealing with inclusions in the gross estate covered by another section of the estate tax which has its own definitional requirements. I do not believe that, under such circumstances, we should pull ourselves up by our own bootstraps by accepting the importation of one provision of the estate tax into the gift tax via Harris and then reimporting that provision back into the estate tax -- indeed, into another provision of the estate tax. It may well be that Harris ought to be extended so as to eliminate the requirement that the marital settlement agreement be incorporated in the divorce decree. But, until this case, this Court has been reluctant to extend Harris. 44 T.C. 851">Estate of Hubert Keller, supra;Karl T. Wiedemann, 26 T.C. 565">26 T.C. 565 (1956). And Congress in a major overhaul of the entire Internal Revenue Code in 1954 saw fit so to extend Harris only in the gift tax area. See sec. 2516. Since that time, Congress has made major changes in the Internal Revenue Code by the Technical Amendments Act 1966 U.S. Tax Ct. LEXIS 152">*226 of 1958, the Revenue Act of 1962, and the Revenue Act of 1964. On none of these occasions did Congress attempt to incorporate section 2516 into the estate tax area, although 45 T.C. 323">*353 the American Bar Association had been concerned about the problem and had recommended such action as early as 1956. ³

Nor do I believe that section 2516 can be incorporated into the estate tax under the doctrine of pari materia -- this possibility is suggested by the majority opinion, although it carefully refrains from specifically so doing. Much of what I have previously outlined regarding the history of section 2516, and its relevance to the estate tax, is in point here. But, beyond this, section 2516 is a substantive as distinguished from a definitional provision. Under such circumstances, I do not believe that the doctrine of pari materia is properly applicable. This distinction was clearly drawn in the opinion of the Circuit Court of Appeals in 340 U.S. 106">Harris v. Commissioner, supra, 1966 U.S. Tax Ct. LEXIS 152">*227 in dealing with another issue in that case which was not before the Supreme Court. 178 F.2d 861 (C.A. 2, 1949); see also MacDonald v. United States, 139 F. Supp. 598">139 F. Supp. 598 (D. Mass. 1956); Harris v. Commissioner, 340 U.S. 106">340 U.S. 106, 340 U.S. 106">113, 340 U.S. 106">115 fn. 2 (Mr. Justice Frankfurter dissenting); 1 Mertens, Law of Federal Gift and Estate Taxation, sec. 4.05.

At various points in the majority opinion, it is suggested that there are elements of hostility or arm's-length bargaining in connection with divorce settlements which are not present in other types of nuptial arrangements. This may be true but it is not always the case. In any event, I do not believe it is the function of the courts to decide -- at least in gift and estate tax cases -- whether the relationship between husband and wife reflects the romantic waltz or the violent apache dance. The gift and estate tax provisions of the Internal Revenue Code set forth an objective standard by which consideration is to be measured. ^{41966 U.S. Tax Ct. LEXIS 152">*228} 324 U.S. 303">Commissioner v. Wemyss, supra;Merrill v. Fahs, 324 U.S. 308">324 U.S. 308 (1945).

A determination that Jane Glen furnished consideration of $ 190,131 does not settle the question of how much should be excluded from decedent's gross estate. The answer to this question requires an examination of the language of section 2043 and the relationship of that section to, in this case, section 2036.

Section 2043 specifies that in the case of certain transfers for insufficient consideration "there shall be included in the gross estate only 45 T.C. 323">*354 the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent." (Italics supplied.)

The italicized words are crucial. It would appear that, in determining the amount of consideration to be deducted, the property must first be fragmentized into the various interests therein and a determination made of which interests are includable in the gross estate without regard to the existence of consideration. Only when an interest is found so 1966 U.S. Tax Ct. LEXIS 152">*229 to be included does one get to the question of how the consideration for that interest is to be treated.

If there had been no consideration whatsoever, the value of Jane Glen's outstanding life interest at the time of decedent's death would be excluded under section 2036. Sec. 20.2036-1(a), Estate Tax Regs. Such being the case, this interest is not otherwise included within the meaning of section 2043. Consequently, the consideration paid "therefor" (for this interest) should not be taken into account and the only amount that should be excluded for that interest is the amount excluded by the operation of section 2036, to wit, $ 82,991.35. ⁵

The fact that only the $ 82,991.35 representing Jane Glen's life interest ought to be excluded does not settle the question of 1966 U.S. Tax Ct. LEXIS 152">*230 how the $ 190,131 which she paid for her interest at the time the trust was established should be taken into account in determining the consideration under section 2043 for the other interests in the trusts. The fact is that, whatever may be the measure of the total amount of consideration which she paid, $ 190,131 was for her life interest. This means that, even if the majority is correct that decedent received approximately $ 333,000 as consideration, only approximately $ 143,000 of that consideration should be allocated to the remaining interests. I agree with the allocation in this regard contained in the majority opinion. ⁶ The majority, however, goes on to give decedent credit for both the $ 190,131 under section 2043, and a portion of the value of Jane Glen's life interest at the date of decedent's death under section 2036. In this respect, I believe the majority is in error. It seems to me that, although $ 190,131 is deducted for purposes of calculating the amount of the consideration allocable to interests other than that of Jane Glen, it is not allowable as a deduction for the value of her 45 T.C. 323">*355 outstanding life interest. That deduction is limited under 2036 to the agreed 1966 U.S. Tax Ct. LEXIS 152">*231 value as of the date of decedent's death in the amount of $ 82,991.35, and section 2043 has no application. ⁷