On October 30, 1967, decedent1986 U.S. Tax Ct. LEXIS 113">*126 and Grace Paxton signed a lease whereby they leased the family residence for a period 86 T.C. 785">*791 of 60 months, with a right of renewal, for a rental of $ 500 per month.

Jerre and his wife, Nancy, Ted L. Paxton and his wife, Sharon, and Philip Crawford, Jr., an employee of Kwik Lok, and his wife, Wanda, conveyed title of the following assets to PFO:

As consideration for the foregoing transfers of property to it, the trustees of PFO issued certificates of interest as follows:

On March 15, 1971, decedent and Grace Paxton transferred 303 units of the certificates of interest in PFO each to decedent's four children by Eleanor Paxton, to Ande Paxton, and to1986 U.S. Tax Ct. LEXIS 113">*127 Diane Irwin. Thereafter and until decedent's death, the certificates were held as follows:

On October 28, 1976, the certificates representing 1,250.5 86 T.C. 785">*792 units held by decedent at his death were reissued to the following persons:

At the first meeting of the PFO trustees, on August 4, 1967, Jerre was appointed "First Trustee and Trust Manager." As such he was authorized --

to handle individually all the affairs and business of the trust estate, to make distributions of portions and proceeds and income of the trust in his sole discretion, * * * to appoint his successor as First Trustee, 1986 U.S. Tax Ct. LEXIS 113">*128 and to preside at meetings of the Board of Trustees. No official action by the trust may be taken without his consent.

Jerre remained in this position from the date of his appointment to the date of the trial.

On October 11, 1967, three additional trustees of PFO were named, and the trustees adopted the following resolution:

Resolved, that because of the possibility of death, or inability for any reason of the hereinbefore named First Trustee, Jerre Paxton, to serve as such, successor First Trustees are hereby appointed as follows: First succeeding First Trustee shall be Ted Paxton; Second succeeding First Trustee shall be Floyd G. Paxton, Jr.; Third succeeding First Trustee shall be Ande D. Paxton.

At that time, neither Ted Paxton, Floyd G. Paxton, Jr., nor Ande D. Paxton was a trustee.

Jerre and Lorne House were the only trustees from August 4 to October 10, 1967. From October 10, 1967, to December 15, 1975, PFO's trustees were as follows:

1986 U.S. Tax Ct. LEXIS 113">*129 86 T.C. 785">*793 Jerre Paxton, Lorne House, and Diane Irwin have been identified above. Donald Tait was a corporate officer of Jefferson Publications, a corporation owned and controlled by decedent. Donald Loudon was a corporate officer of Kwik Lok. Robert Glaspey was a business acquaintance of decedent. James Shrader was a certified public accountant retained by decedent for both personal and corporate accounting services.

The trust minutes reflect that the declaration of trust was amended on October 25, 1969, and again on May 27, 1972 (1972 version). The 1972 version of the declaration of trust restated many of the terms of the original declaration. The preamble contains the following paragraph:

Whereas, the Subscribers intend that the functions of this Trust shall therefore be to manage and operate as effectively as possible all properties with which the Trustees may from time to time be vested so as to maximize the economic potential thereof for the good of all beneficiaries, to make grants and donations to educational, scientific and religious institutions for and in the name of the Trust, and, if the Trustees in their sole discretion so determine, to make distributions from 1986 U.S. Tax Ct. LEXIS 113">*130 the net revenues of such operations to the account of and in the name of the Holders of Certificates of Interest.

The trustees, as in the original instrument, accepted the conveyances of assets in trust and obligated themselves to conserve and improve the trust and to protect and preserve its assets. The declaration recites that in consideration for the transfer of assets to the trust, the trustees agreed to issue "Certificates of Interest to evidence the equitable interest contributing to the Trust Estate." The certificates 86 T.C. 785">*794 "shall only be negotiable with the express prior consent of the Trustees." The form of the certificates of interest was not changed.

The trustees were authorized to decline to approve the transfer of any certificate of interest and to purchase for the trust "from the then holder * * * at such price as the Board of Trustees in their sole and arbitrary discretion shall determine, regardless of market values, book values or other criteria for fair value." All rights of the registered holder "shall cease and terminate forthwith upon the death of the registered holder and the units represented by any such Certificate of Interest shall not pass by Will or 1986 U.S. Tax Ct. LEXIS 113">*131 by the laws of intestacy." The trustees, however, "may, in their sole discretion, reissue, for such consideration as the Board of Trustees may determine, the units represented by any such Certificate of Interest to such person or persons as they may determine." The instrument further provides:

In the event that a registered holder of a Certificate of Interest shall cease to have and own any portion or all of any rights he may have under any such Certificate of Interest by reason of foreclosure, insolvency or other similar creditor's proceedings, then, for all purposes hereof, any such Certificate of Interest shall be null and void and of no force, effect, or value, and the units represented by any such Certificate of Interest shall be deemed to have been acquired by purchase by this Trust and shall be cancelled and not outstanding and never reissued. No holder of any Certificate of Interest shall have any right or power whatsoever to direct or otherwise influence the Trustees in the exercise of their sole discretion. No registered holder of any Certificate of Interest shall have any right or power to alienate ownership of any Certificate of Interest or of the units represented 1986 U.S. Tax Ct. LEXIS 113">*132 thereby in any manner, whether by assignment, mortgage, pledge, testamentary document or otherwise, without the prior written consent of the Board of Trustees of this Trust.

The instrument states that the "Trustees shall collectively act by virtue of the covenants herein contained as a Board of Trustees" and specifies that:

The action of the majority of the whole number of Trustees expressed from time to time at a meeting or in writing with or without a meeting shall constitute the action of the Trustees and have the same effect as taken though by all.

No trustee may be removed by holders of the certificates of interest but any trustee may be removed by a majority vote at a meeting of the trustees, "but only for cause" and after 86 T.C. 785">*795 notice of the proposed removal. ⁴

1986 U.S. Tax Ct. LEXIS 113">*133 Consistent with the earlier versions, the instrument provides that the trust shall have a life of 20 years unless the trustees unanimously determine upon an earlier or later date. The 1972 version provides that upon dissolution and winding up of the affairs of the trust, the assets shall be distributed exclusively to one or more charitable organizations that would qualify under section 501(c)(3). The instrument further provides, however, that at any time prior to the expiration of the trust, the trustees may, if they so desire and believe that the trust should not be closed, renew the trust instrument for an additional period or periods not to exceed 20 years from the date of renewal.

On October 15, 1982, after Mr. Paxton's death, the trustees of PFO instituted in the Superior Court of Washington for Yakima County an action for declaratory judgment with respect to the administration of PFO. On October 21, 1983, the court entered a declaratory judgment:

1. That the original trust instruments and 1972 version are declared valid;

2. That "distributions of the income and corpus of PFT [PFO] need not be made to every holder of its Certificates of Beneficial Interest and need not be 1986 U.S. Tax Ct. LEXIS 113">*134 made pro rata in proportion to the number of units of interest represented by each certificate and held by the distributees at the time of such distributions."

3. That, on termination of the trust, its corpus and accumulated income is to be distributed to a tax-exempt organization described in section 501(c)(3) selected by the trustees;

4. That the trustees have "power and authority" in their discretion to distribute "income and/or corpus to any holder of a unit of beneficial interest without regard to distributions to other such holders"; to extend or renew the trust "for additional periods or terms of 20 years, or less," and to 86 T.C. 785">*796 amend the trust subject to the limitation that the trust may not be amended "to adversely affect or jeopardize the interests of the charitable beneficiary remainders."

The following table reflects the income, expenses, and distributions made by PFO from 1968 to 1976: ⁵

On July 10, 1968, decedent and Grace Paxton as subscribers, grantors, and assignors executed a declaration of trust providing for the creation of the International Development Trust (IDT). On July 11, 1968, by action of the trustees --

Jerre Paxton was appointed as First Trustee to handle individually all the affairs and business of the trust estate, to make distributions of portions and proceeds and income of the Trust in his sole discretion, the right to appoint his1986 U.S. Tax Ct. LEXIS 113">*136 successor as First Trustee, and to preside at meetings of the Board of Trustees. No official action by the Trust may be taken without his consent.

The trustees also resolved that if for --

good and proper reason conformable to their duties under this indenture, the Trustees may cancel the Certificates of Interest outstanding in return for the pro rata distribution of the corpus then standing in the Trust.

The declaration of trust provided that "By unanimous action, the Trustees may amend from time to time the trust 86 T.C. 785">*797 document." The trust minutes reflect that the IDT declaration of trust was amended on January 18, 1973, and on February 16, 1976. In all material respects, the 1973 version of the IDT declaration of trust was similar to the May 30, 1972, version of the PFO declaration of trust described above.

To this trust decedent and Grace Paxton on July 12, 1968, transferred in trust certain foreign and U.S. patents in exchange for 100 units of certificates of interest. On August 7, 1968, 50 units of certificates of interest, originally issued to decedent and Grace Paxton, were reissued so that the units of interest of IDT were held until decedent's death as follows: 1986 U.S. Tax Ct. LEXIS 113">*137

On October 28, 1976, 19 of the 25 units of the IDT certificates of interest held by Floyd Paxton prior to his death were reissued to certain family members so that the certificates of interest were then held as follows:

The trustees of IDT were as follows:

86 T.C. 785">*798 All of these individuals have been identified above except Dale Leach, who was an employee of Kwik Lok, and Peter Lind, an attorney for Mr. Paxton and Kwik Lok.

The 1986 U.S. Tax Ct. LEXIS 113">*138 table on page 799 reflects IDT's distributions to the holders of its certificates of beneficial interest.

In each of its fiscal years 1981 through 1984, IDT made substantial distributions of trust corpus to certificate holders and charitable organizations, as reflected in the trust's annual financial statements and the following table:

No gift tax returns were filed by either Floyd G. Paxton or Grace Paxton in connection with the transfers of the assets to PFO or IDT or the transfers of the certificates of interest in PFO or IDT to other family members. In letters addressed to the Internal Revenue Service protesting the proposed gift tax deficiency, decedent and Grace Paxton asserted, among other things, that no gift tax deficiency was due because they received for the transferred property "something which * * * [they] felt was of equal value."

On his individual Federal income tax returns for the years 1965 through 1975, Mr. Paxton reported income from various sources, 1986 U.S. Tax Ct. LEXIS 113">*139 including wages, consulting fees, and interest, as well as distributions from the PFO and IDT trusts. However, the bulk of decedent's income during those years was derived from his patent licensing agreement with Kwik Lok. 86 T.C. 785">*799

1986 U.S. Tax Ct. LEXIS 113">*140 86 T.C. 785">*800 On the fiduciary income tax returns filed for PFO and IDT, distributions to the holders of the certificates of interest were shown as "Deductions for distributions to beneficiaries."

For the period from October 1, 1967, to December 31, 1967, the Commissioner of Internal Revenue determined that decedent and Grace Paxton were taxable under sections 676 and 677, the grantor trust provisions, on 86.38 percent of PFO's net income because they granted a nonadverse party a power to revoke the trust. The resulting income tax deficiencies were sustained, Paxton v. Commissioner, 57 T.C. 627">57 T.C. 627 (1972), affd. 520 F.2d 923">520 F.2d 923 (9th Cir. 1975). For 1969, 1970, and 1971, the Commissioner determined that decedent and Mrs. Paxton were taxable on the net income of PFO and IDT because they retained the power to revest in themselves title to the corpus of the trusts (or portions thereof) as well as the power to apply or distribute the income of their trusts for their benefit, referring to sections 676 and 677. The deficiencies as to PFO were sustained but, because of differences in the language of the trust instruments, were not upheld as1986 U.S. Tax Ct. LEXIS 113">*141 to IDT. Estate of Paxton v. Commissioner, T.C. Memo. 1982-464.

An Amended Inventory for decedent's estate was filed on July 15, 1980, in the Superior Court of the State of Washington for Yakima County listing the following assets as a true inventory of all the property in decedent's estate: ⁶

Peter Lind, a Washington attorney who served as tax advisor to the Paxton family from 1967 to the time of trial, advised Jerre that the value of the assets in decedent's community estate did not exceed $ 60,000 and that he need 86 T.C. 785">*801 not file an estate tax return. 1986 U.S. Tax Ct. LEXIS 113">*142 Consistent with that advice, Jerre did not file an estate tax return for the estate.

OPINION

The trust instruments on which these cases turn follow the format and employ much of the language used in so-called family trusts which in recent years have been the subject of numerous income tax cases. ⁷ We are here dealing, however, with an asserted estate tax liability. The PFO and IDT declarations of trust differ from typical family trust instruments in that they do not involve personal service income but have as their subject matter highly valuable stock, patents, and other property. Although the language in the declarations of trust is so ambiguous and in some respects internally inconsistent as to be almost unintelligible, we have the task of attempting to ascertain the relationships created by those instruments and applying pertinent provisions of the estate tax laws to decedent's transfers to the trusts.

1986 U.S. Tax Ct. LEXIS 113">*143 Our task in interpreting the ambiguous trust instruments has not been made easier by the numerous alternative (and at least to some extent inconsistent) positions advanced by respondent -- that the transferred assets were includable in decedent's gross estate under sections 2033 (on the grounds that the trusts were shams, invalid under estate law, or resulting trusts), 2036, 2037, and 2038. Respondent has accompanied his arguments with repeated expressions of concern about the potential abuses of the family trust concept in the gift and estate tax fields. Petitioners in this 86 T.C. 785">*802 case and Mr. Paxton prior to his death, on the other hand, have shifted their positions as to the meaning and consequences of the trust instruments, depending upon the tax in controversy and the arguments which they are attempting to refute. ⁸ The trust declarations have also been amended repeatedly, apparently to deal with current or anticipated tax problems. The result is that neither party has provided the Court with an analysis of the trust instruments containing a consistent thread of interpretation.

The parties do not even agree on what version of the trust instruments controls as to PFO: the August 3, 1967, the October 25, 1969, or the 1972 version of the declaration of trust. This disagreement is attributable, in part, to the absence of a provision in the August 3, 1967, PFO declaration of trust authorizing the trustees to amend it. Such a provision does appear in the July 10, 1968, IDT trust declaration.

We have concluded that petitioners' estate tax liability should be determined under the 1972 version of the PFO instrument and will treat it as the controlling PFO trust declaration. The 1972 version was signed by Mr. Paxton as grantor and by the then trustees as such, and was acquiesced in by the then holders of all the certificates of interest. These individuals were the only ones interested in the trust as creators, administrators, or beneficiaries except potential section 501(c)(3) organizations under the October 25, 1969, version of the trust. ⁹1986 U.S. Tax Ct. LEXIS 113">*146 In the Yakima County86 T.C. 785">*803 Superior Court declaratory judgment proceeding, the Attorney General of the State of Washington was named as one of the defendants in his capacity1986 U.S. Tax Ct. LEXIS 113">*145 as statutory representative of unnamed charities with contingent interests, and the Superior Court held that the 1972 version was valid. In Paxton v. Commissioner, T.C. Memo. 1982-464, this Court held that the 1972 version was not valid because the August 3, 1967, version did not give the trustees power to amend the instrument. That decision was reached, however, before the Superior Court judgment was obtained. ¹⁰

We have also decided, in applying the PFO instrument, to give effect to the declaratory judgment entered by the Superior Court of Yakima County, Washington, on October 21, 1983, interpreting the PFO instrument. We recognize that, under Commissioner v. Estate of Bosch, 387 U.S. 456">387 U.S. 456, 387 U.S. 456">465 (1967), we should give proper1986 U.S. Tax Ct. LEXIS 113">*147 regard to, but we are not bound by, that court's judgment; in the absence of a Washington State Supreme Court decision, we are to apply what we find to be the State law on the subject. Neither party, however, has cited nor have we found any State law inconsistent with the Yakima County Superior Court judgment. Also, because we hold for respondent and the State court decree appears to reflect the interpretation most favorable to petitioners, we adopt that view in order to foreclose further disputes as to the effect of various provisions in the trust instruments. ¹¹

1986 U.S. Tax Ct. LEXIS 113">*148 86 T.C. 785">*804 2. Decedent's Interest as Beneficiary of the Trusts

As we read the PFO and IDT declarations of trust and related instruments, they created discretionary trusts subject to certain retained interests discussed below. ¹²1986 U.S. Tax Ct. LEXIS 113">*149 Decedent and Grace Paxton transferred property to the trustees of PFO and IDT, respectively, and the trustees accepted the property as trust assets for which they assumed fiduciary responsibilities. As consideration for the transfers, decedent and Grace Paxton, and others who transferred Kwik Lok stock to the trusts, received beneficial interests in the trusts evidenced by certificates of interest. The trust declarations expressly provide that the certificates of interest "evidence the equitable interest contributing to the Trust Estate." The PFO trustees, as explained by the Yakima County Superior Court, were given discretion to distribute both income and corpus to the certificate holders and the distributions were not required to be proportionate to the holdings of such certificates. ¹³ In our view, the certificate holders, including decedent, were, thus, the beneficiaries of the trusts. ¹⁴

1986 U.S. Tax Ct. LEXIS 113">*150 Petitioners, however, contend that "Jerre Paxton received an outright conveyance and assignment of the complete beneficial interest in the assets designated as trust assets." Petitioners argue:

86 T.C. 785">*805 Absolutely no evidence of any circumstance could be introduced to raise an inference that Floyd Paxton did not intend Jerre Paxton to have the beneficial interest in the property. The entire record, beginning with Floyd's conveyance of the assets to Jerre and to Lorne House, his patently subservient trustee, with unlimited powers to amend the trust instrument; the disclaimer in both the certificates and trust instruments of any enforceable beneficial interest to be enjoyed by their holders, despite their precatory connotations; the manner in which Jerre Paxton ran the trusts and their assets with an iron hand; and concluding with Floyd Paxton's Last Will * * * in which he made provision for the disposition of only his automobile, wearing apparel, jewelry, cash and other personal effects, irrefutably demonstrates that Jerre Paxton was intended to have the entire beneficial interest in the assets transferred. Lorne House and such additional or successor co-trustees as he might have, 1986 U.S. Tax Ct. LEXIS 113">*151 received and would hold their legal title for the exclusive benefit of Jerre Paxton, subject to only such largess as he might deign to bestow upon his family members or others.

This argument is without merit. It is inconsistent with Mr. Paxton's argument to the Internal Revenue Service in January 1975 that he owed no gift tax on the transfers to the trust because, he asserted, the "property was transferred to the trusts in exchange for certificates of beneficial interest in the trusts." It is inconsistent with the whole thrust of Paxton v. Commissioner, 520 F.2d 923">520 F.2d 923 (9th Cir. 1975), affg. 57 T.C. 627">57 T.C. 627 (1972), where the court held that Jerre's then ownership of 3.84 percent of the PFO certificates of interest was insufficient to make him a trustee with an interest adverse to that of decedent and Grace Paxton under the grantor trust provisions of sections 676 and 677. It is inconsistent with the October 11, 1967, action of the PFO trustees, one of whom was Jerre Paxton, in designating Mr. Paxton's three other sons as successor first trustees with the same powers as Jerre enjoyed. ¹⁵ It is inconsistent with the elaborate provisions1986 U.S. Tax Ct. LEXIS 113">*152 in both trust instruments on, and the meticulous care given to, the identification in the trust records before and after Mr. Paxton's death of the holders of the certificates of interest. Finally, it is inconsistent with both trusts' treatment in the fiduciary income tax returns of the distributions to the certificate holders as deductions for distributions to beneficiaries.

Jerre Paxton's powers with respect to the trusts were trust powers. No transfers were made to him as an 86 T.C. 785">*806 individual. The PFO and IDT trust instruments expressly state that the transferred property was held "upon trust for the uses and purposes hereinabove and hereinafter set forth." The minutes of the PFO trustees authorizing the issuance of the 4,319 certificates of interest "for and in consideration" of the transfer by decedent and Grace Paxton expressly state that the conveyance was made to the trustees "to hold in trust" for the benefit of the PFO trust. Decedent's1986 U.S. Tax Ct. LEXIS 113">*153 offer to convey the patents to IDT states that he would "convey to you, as Trustees" for IDT. Neither one of the declarations of trust or conveyance mentions a first trustee or Jerre Paxton by name in any capacity other than as a trustee.

The record is clear that Jerre was the most influential one of the trustees and that he was designated by the other trustees as first trustee and given broad authority to manage the affairs of the trust. As a practical matter, he was in many respects the sole trustee. Again, however, his powers as first trustee were trust powers, not beneficial powers. As explained in Paxton v. Commissioner, 520 F.2d 923">520 F.2d at 925, his powers as first trustee "are not prescribed by the trust itself and can be withdrawn by a majority of the trustees." Our findings, moreover, quote provisions of the 1972 version of the PFO trust declaration which specifically provide that decisions of the trustees were to be made by majority vote. Indeed, under those provisions, Jerre, like any one of the other trustees, could be removed by a majority vote of the other trustees after proper notice. The IDT trust instrument is similar.

Jerre's position 1986 U.S. Tax Ct. LEXIS 113">*154 as trustee or first trustee did not give him a beneficial interest in the trust or its corpus; his beneficial interest was measured by the number of units covered by his certificates of interest. A trustee is under a duty to administer the trust solely in the interest of the beneficiaries, and he is required to have an undivided loyalty. "The trustee is not permitted to make a profit out of the trust." In re Johnson's Estate, 187 Wash. 552">187 Wash. 552, 60 P.2d 271">60 P.2d 271, 60 P.2d 271">272 (1936); Matter of Estate of Drinkwater, 22 Wash. App. 26, 587 P.2d 606">587 P.2d 606, 587 P.2d 606">608 (1978). The "trustee has no right to derive any benefit or advantage from the trust fund; but all his skill and labor in the management of it 86 T.C. 785">*807 must be directed to the advancement of the interest of his cestui que trust." In re Carlson's Guardianship, 162 Wash. 20">162 Wash. 20, 297 P. 764">297 P. 764, 297 P. 764">768 (1931); County of Skamania v. State, 102 Wash. 2d 127, 685 P.2d 576">685 P.2d 576 (1984).

Making Jerre, his eldest son, first trustee so that he could control the destiny of the trusts was obviously part1986 U.S. Tax Ct. LEXIS 113">*155 of decedent's plan for attempting to transmit his considerable estate to the natural objects of his bounty, while at the same time receiving income and enjoying the potential for receiving additional amounts. After decedent's death, the IDT distributions, as shown in in our findings, have substantially exceeded IDT's income with the result that the corpus of the trust is being systematically passed on to the Paxton family members. The question is whether Mr. Paxton found a way of transmitting his wealth to the Paxton children without incurring any transfer tax whatever. We do not think he did.

Section 2036(a)¹⁶ provides that the value of the gross estate shall include the value of all property transferred by trust or otherwise with respect to which the decedent has retained for his life or a period which did not in fact end before his death (1) the possession or enjoyment of, or right to income from the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom. That section reflects a "legislative policy of subjecting to1986 U.S. Tax Ct. LEXIS 113">*156 tax all property which has been the subject of an incomplete inter vivos transfer." United States v. O'Malley, 383 U.S. 627">383 U.S. 627, 383 U.S. 627">631 (1966).

The legislative policy is to include in a decedent's gross estate transfers which1986 U.S. Tax Ct. LEXIS 113">*157 are in substance testamentary, i.e., 86 T.C. 785">*808 "transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime." United States v. Estate of Grace, 395 U.S. 316">395 U.S. 316, 395 U.S. 316">320 (1969). As stated in Commissioner v. Estate of Church, 335 U.S. 632">335 U.S. 632, 335 U.S. 632">645 (1949):

an estate tax cannot be avoided by any trust transfer except by a bona fide transfer in which the settlor, absolutely, unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property.

Section 2036(a)(1) applies if the decedent retained either the right to income from the property or its possession or enjoyment. Thus, even if a decedent does not expressly reserve a right to the income, the transferred property may be included in the decedent's gross estate under section 2036(a)(1) if the decedent retained possession or enjoyment of the property. McNichol's Estate v. Commissioner, 265 F.2d 667">265 F.2d 667, 265 F.2d 667">670-671 (3d Cir. 1959), affg. 29 T.C. 1179">29 T.C. 1179 (1958).

For two reasons, 1986 U.S. Tax Ct. LEXIS 113">*158 we hold that Mr. Paxton's transfers to the PFO and IDT trusts are includable in his gross estate under section 2036(a): (1) He made the transfers subject to an understanding, express or implied, that he would receive the trust income or corpus or both when requested, and (2) he retained an interest in the trust income and corpus his creditors could reach.

Respondent contends that, pursuant to an understanding, express or implied, decedent retained for life the possession or enjoyment of, or the right to the income from, the property transferred to the trusts and that, therefore, the trust property is includable in his estate under section 2036(a)(1). Petitioners contend that decedent made a bona fide irrevocable transfer of his property to the trusts and that he retained no rights, interest, or control over the transferred property. Petitioners have the burden of proof. Estate of Whitt v. Commissioner, 751 F.2d 1548">751 F.2d 1548, 751 F.2d 1548">1556 (11th Cir. 1985), affg. a Memorandum Opinion of this Court.

Had Mr. Paxton retained no rights in the entrusted property, as petitioners now contend, then the transfers would have been completed1986 U.S. Tax Ct. LEXIS 113">*159 gifts and subject to gift tax 86 T.C. 785">*809 under section 2501(a). Yet the record reveals that no gift tax return was filed when the property was transferred to the trusts. ¹⁷ On January 23, 1975, not long before his death, Mr. Paxton filed with the Internal Revenue Service a letter protesting a proposed gift tax deficiency. In that letter, he stated that he did not make "donative" transfers of the property, that the "property was transferred to the trusts in exchange for certificates of beneficial interest in the trusts," that the "trust certificates * * * have consistently returned income to him," and that he exchanged "his property for something which he felt was of equal value" to him.

1986 U.S. Tax Ct. LEXIS 113">*160 The parties here agree that the certificates of interest as such had virtually no value because of the broad discretion over distributions expressly conferred on the trustees. Yet Mr. Paxton's statements in the protest letter made only a few months before he died show that he knew he had not made no-strings-attached transfers to the trusts, but had received a quid pro quo which he referred to as "something which he felt was of equal value." We find that the something of equal value he received in the exchange was an understanding, express or implied, with the trustees that he would receive distributions of income or corpus if, as, and when he requested them. ¹⁸

1986 U.S. Tax Ct. LEXIS 113">*161

The effect of an express or implied understanding is addressed in section 20.2036-1(a), Estate Tax Regs., which provides:

An interest or right is treated as having been retained or reserved if at the time of the transfer there was an understanding, express or implied, that the interest or right would later be conferred.

Under section 2036(a)(1) and this regulation, a retained life interest need not be created by the express terms of the 86 T.C. 785">*810 instrument, nor need it be legally enforceable, for section 2036(a)(1) to apply. 265 F.2d 667">McNichol's Estate, supra at 670-671; Estate of Green v. Commissioner, 64 T.C. 1049">64 T.C. 1049, 64 T.C. 1049">1061 (1975); Estate of McCabe v. United States, 201 Ct. Cl. 243">201 Ct. Cl. 243, 201 Ct. Cl. 243">250, 475 F.2d 1142">475 F.2d 1142, 475 F.2d 1142">1146 (1973). Indeed, the existence of an agreement or understanding by which the possession or enjoyment of the property is retained may be inferred from the circumstances of the transfer and the manner in which the transferred property is used. Skinner's Estate v. United States, 316 F.2d 517">316 F.2d 517, 316 F.2d 517">519-520 (3d Cir. 1963); Estate of Barlow v. Commissioner, 55 T.C. 666">55 T.C. 666, 55 T.C. 666">670 (1971).1986 U.S. Tax Ct. LEXIS 113">*162

The circumstances of the instant case reveal that Mr. Paxton was a wealthy man accustomed to living well. He transferred to the trusts all of his property, including even his household furniture, ¹⁹ except his patent licensing agreement which paid him royalties ranging from about $ 100,000 to some $ 196,000 per year until his death. Apart from these royalties and small amounts of income from consulting fees, interest, and distributions from PFO and IDT, he had no income. The royalties would cease on the expiration of the patents in 1982. At that time, decedent would have been only 64 years of age. We do not think he would have left himself virtually destitute at that age without an understanding that he would receive income or corpus or both from the trusts when and as needed. See Estate of Green v. Commissioner, 64 T.C. 1049">64 T.C. 1062.

1986 U.S. Tax Ct. LEXIS 113">*163 We also think it inconceivable he would have left his wife 86 T.C. 785">*811 destitute; yet he apparently made no provision for her, other than the trusts, in the event of his death. After transferring to the trusts virtually all their property, including the family residence, decedent, on April 11, 1969, surrendered all royalty payments remaining at his death under his patent licensing agreement in exchange for $ 25,000. But Grace Paxton was not left destitute. ²⁰1986 U.S. Tax Ct. LEXIS 113">*164 At decedent's death she began receiving approximately $ 4,000 per month from the IDT trust and has continued to live in the family residence. ²¹ The provisions in the trust instruments authorizing non-pro-rata distributions of income and corpus facilitated these distributions to Grace Paxton and, similarly, would have permitted disproportionate distributions to decedent if he had needed them.

1986 U.S. Tax Ct. LEXIS 113">*165 Petitioners point out that trust distributions to decedent and his wife before and after decedent's death were made only at the trustees' discretion and, in any case, constituted only a small percentage of their income during decedent's lifetime. ²² However, continuous receipt of substantial 86 T.C. 785">*812 amounts of trust income is not necessary to support the finding of a prearrangement under section 2036(a)(1). ²³

1986 U.S. Tax Ct. LEXIS 113">*166 In Estate of McCabe v. United States, 201 Ct. Cl. 243">201 Ct. Cl. 243, 475 F.2d 1142">475 F.2d 1142 (1973), the decedent created in 1940 an inter vivos trust which provided for the income to be paid to his wife for life with a remainder to his children. The trust instrument also provided that trust corpus could be invaded for the benefit of Mrs. McCabe on her illness or in case of an emergency. No distributions from trust corpus were made until 1959 when the decedent retired and his income diminished. After decedent retired in 1959 and before he died in 1964, cash distributions were made to him at four separate times from trust corpus pursuant to letters executed by Mrs. McCabe at his request. At no time did the trustee, decedent's longtime friend and business associate, inquire as to Mrs. McCabe's situation to determine if she was ill or needed the cash for an emergency.

On these facts, the Court of Claims held that decedent retained a life interest in the trust includable in his estate under section 2036(a)(1). The court found persuasive evidence of an implied arrangement between decedent and the trustee, even though no distributions were made to decedent until1986 U.S. Tax Ct. LEXIS 113">*167 he needed the cash -- 19 years after he created the trust.

The facts in the instant case are similar. Here, as in McCabe, decedent had substantial income sources aside from the property held in trust and demanded no income or corpus so long as he did not need it. However, unlike the decedent in McCabe, Mr. Paxton died before his income stream terminated. He never needed the cash distributions. Grace Paxton, on the other hand, left virtually penniless at her husband's death, needed distributions from the trust and began receiving them immediately after her husband's death.

In some respects, the evidence in the instant case is even stronger in support of a prearrangement than in McCabe. 86 T.C. 785">*813 First, decedent herein was a beneficiary of the trusts and received several distributions along with other holders of certificates of interest during the first 8 years the trusts were in effect, while the decedent in McCabe received no distributions for the first 19 years of the trust. Second, Mr. Paxton, in creating the trusts, was parting with virtually all he owned when his patent licensing agreement expired; he would hardly have risked giving up all his assets without1986 U.S. Tax Ct. LEXIS 113">*168 making some arrangement to get some income or the property back if and when he needed it. Third, after Mr. Paxton's death, his certificates of interest were reissued to the Paxton children (including Diane Irwin) and their spouses, the natural objects of his bounty, and distributions from the IDT trust to the Paxton children and their spouses increased substantially, though not as dramatically as in the case of Grace Paxton. Finally, the record in this case reveals a close father-son relationship between decedent and his son, Jerre, who from the beginning for all intents and purposes in actual practice was the sole trustee. ²⁴ Two months after PFO was created, decedent's three other sons, in descending order according to age, were respectively named as successor first trustee in case of Jerre's disability or death. As stated in Skinner's Estate v. United States, 316 F.2d 517">316 F.2d at 520:

every case of this sort must stand on its own facts, and * * * the practice of assuming that a trustee * * * is necessarily independent of the cestui whom he represents, need not be followed invariably but may be rebutted by circumstances.

1986 U.S. Tax Ct. LEXIS 113">*169 Based on all of the foregoing circumstances, we think it was understood between decedent and his son, Jerre, at or before the execution of the PFO and IDT trusts, that decedent would receive distributions of income or corpus or both upon demand or at the expiration of decedent's patent licensing agreement. ²⁵ Given the agreement of the parties 86 T.C. 785">*814 that the certificates of interest that he received had no fair market value, we can find no other explanation for Mr. Paxton's statement that he received something of value equal to the value of the property he transferred to the trusts. Accordingly, we hold that decedent retained for his life possession or enjoyment of the property he transferred to the trusts; and, therefore, the value of the property transferred to the PFO and IDT trusts is includable in his gross estate under section 2036(a)(1).

As settlor-beneficiary, decedent retained the economic benefit and enjoyment of the entire trust income and corpus because he could borrow money or otherwise incur indebtedness and relegate his creditors to the trust for payment. Retention of the right to use the trust as a form of security for his indebtedness in this manner left Mr. Paxton with a significant interest in the property. See United States v. Estate of Grace, 395 U.S. 316">395 U.S. 316, 395 U.S. 316">320 (1969). In our opinion, that is sufficient to require his transfers to the trusts to be included in his gross estate under section 2036(a)(1).

The widely accepted legal principle controlling the rights of the creditors of a settlor-beneficiary of a trust in which the trustees are given discretion, not controlled by an ascertainable legal standard, to make distributions to the settlor, is stated in 1 Restatement, Trusts 2d, sec. 156(2) (1959), as follows:

Where a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or1986 U.S. Tax Ct. LEXIS 113">*171 apply for his benefit. ²⁶

86 T.C. 785">*815 To permit the owner in creating a trust to retain for his own benefit an interest in the entrusted property which cannot be reached by creditors is against public policy. Nelson v. California Trust Co., 33 Cal. 2d 501">33 Cal. 2d 501, 202 P.2d 1021">202 P.2d 1021 (1949); In re Mogridge's Estate, 342 Pa. 308">342 Pa. 308, 20 A.2d 307">20 A.2d 307, 20 A.2d 307">309 (1941).

1986 U.S. Tax Ct. LEXIS 113">*172 This principle has been applied in both estate and gift tax cases. ²⁷Where the decedent at any time during his life could have obtained the economic benefit of the trust income or corpus by borrowing and then forcing creditors to look to his interest in the trust income for a source of repayment, this interest has been held sufficient to require the inclusion of the transferred property in decedent's gross estate under section 2036(a)(1). Estate of Uhl v. Commissioner, 25 T.C. 22">25 T.C. 22 (1955), revd. and remanded 241 F.2d 867">241 F.2d 867 (7th Cir. 1957); see also Estate of Boardman v. Commissioner, 20 T.C. 871">20 T.C. 871 (1953). In reversing the Uhl decision, the Court of Appeals did not directly dispute the Tax Court's view that the settlor of a trust is regarded for tax purposes as retaining any interest in the trust which his creditors can reach but concluded that under Indiana law the settlor's creditors could not have reached the trust property. ²⁸

1986 U.S. Tax Ct. LEXIS 113">*173 Similarly, in the related gift tax area, transfers to a discretionary trust have been held to be incomplete and not subject to the gift tax where, under the applicable State law, the creditors of the settlor-beneficiary could reach the income or corpus of a discretionary trust. Paolozzi v. Commissioner, 23 T.C. 182">23 T.C. 182, 23 T.C. 182">186-187 (1954) (Massachusetts law); Vander Weele v. Commissioner, 27 T.C. 340">27 T.C. 340, 27 T.C. 340">343-344 (1956), affd. 254 F.2d 895">254 F.2d 895 (6th Cir. 1958) (Michigan law); Outwin v. Commissioner, 76 T.C. 153">76 T.C. 153, 76 T.C. 153">162-165 (1981) (Massachusetts law). The principle was explained in Vander Weele v. Commissioner, 254 F.2d at 898, holding that no gift tax was incurred by a settlor-beneficiary of a trust, as follows:

86 T.C. 785">*816 The trustees were granted almost unrestricted power to invade the corpus of the trust for the benefit of the trustor, with the possibility of the repayment of the entire trust fund to her. The trust conveyance in effect created no completed taxable gift to the remaindermen -- the husband and children of the trustor. There was no1986 U.S. Tax Ct. LEXIS 113">*174 assurance that anything of value would pass to the remaindermen. The settlor could in actuality retain the economic benefit and enjoyment of the entire trust income and corpus of the trust estate by borrowing money or by selling, assigning, or transferring her interest in the trust fund and relegating her creditors to the trust fund for payment.

On the other hand, a gift tax has been held applicable where under State law, as interpreted by the court, the settlor-beneficiary's creditors could not reach the trust corpus or income. Herzog v. Commissioner, 116 F.2d 591">116 F.2d 591 (2d Cir. 1941), affg. 41 B.T.A. 509">41 B.T.A. 509 (1940) (New York law); ²⁹ see also Rheinstrom v. Commissioner, 105 F.2d 642">105 F.2d 642 (8th Cir. 1939), affg. on this issue 37 B.T.A. 308">37 B.T.A. 308 (1938).

1986 U.S. Tax Ct. LEXIS 113">*175 In the instant case, according to the Yakima County Superior Court, the trustees of the PFO trust could make distributions of income or corpus to the holders of certificates of interest and the distributions need not be made pro rata in proportion to the number of units of beneficial interest held by the distributees. Within their discretion, therefore, the trustees could have made distributions to Mr. Paxton, up to and including the entire trust corpus. Under Washington law, we are convinced, his creditors could have reached such amounts. Accordingly, his inter vivos transfers to the trusts are includable in his gross estate under section 2036(a)(1).

Two Washington statutes address this issue. Wash. Rev. Code Ann. sec. 6.32.250 (1977), one of the provisions dealing with exemptions from seizure, states:

86 T.C. 785">*817 Property exempt from Seizure. This chapter does not authorize the seizure of, or other interference with, * * * property held in trust for a judgment debtor where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor * * * ³⁰1986 U.S. Tax Ct. LEXIS 113">*177

The Washington supreme court has stated that the "practical effect of [this] 1986 U.S. Tax Ct. LEXIS 113">*176 statute has been to clothe every active trust with statutory spendthrift provisions," ³¹Seattle First Nat. Bank v. Crosby, 42 Wash. 2d 234, 254 P.2d 732">254 P.2d 732, 254 P.2d 732">738 (1953), but the "other than the judgment debtor" language limits the statute to trusts created by one who is not also a beneficiary. ³² This limitation appears to be an implicit recognition of the principle of 1 Restatement, Trusts 2d, sec. 156(2) (1959), quoted above. Bogert, Trusts & Trustees, sec. 223, at 440, n. 99 (2d rev. ed. 1979). In other words, this provision does not prevent the seizure of property held for a judgment debtor in a trust created by the judgment debtor.

Wash. Rev. Code Ann. sec. 19.36.020 (1977) further provides:

Deeds, etc., in trust for grantor void as to creditors. That all deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against the existing or subsequent creditors of such person.

This section is in substance a statutory enactment of the Restatement rule. 2 A. Scott, Trusts, sec. 156.2 (3d ed. 1967). We think the statute means exactly what it says. Petitioners argue, however, that the section is applicable only where the property was transferred to the trust with a specific intent to defraud creditors. Petitioners argue that 86 T.C. 785">*818 the section does not apply here because Mr. Paxton had no intention of defrauding his current or1986 U.S. Tax Ct. LEXIS 113">*178 subsequent creditors.

Most of the cases in which Wash. Rev. Code Ann. sec. 19.36.020 (1977) has been applied were cases in which there was evidence of actual fraud. Allard v. La Plain, 152 Wash. 211">152 Wash. 211, 277 P. 843">277 P. 843 (1929); Van Stewart v. Townsend, 176 Wash. 311">176 Wash. 311, 28 P.2d 999">28 P.2d 999 (1934); Carroll v. Carroll, 18 Wash. 2d 171, 138 P.2d 653">138 P.2d 653 (1943); Jones v. Jones, 56 Wash. 2d 328, 353 P.2d 441">353 P.2d 441 (1960). However, we have found no Washington case in which the court held that fraud must be proved to invoke Wash. Rev. Code Ann. sec. 19.36.020 (1977). ³³

1986 U.S. Tax Ct. LEXIS 113">*179 Nevertheless, if petitioner is correct that Wash. Rev. Code Ann. sec. 19.36.020 (1977) is limited to transfers with actual intent to defraud, and Wash. Rev. Code Ann. sec. 6.32.250 (1977), referred to above, also does not apply here because the trusts created by Mr. Paxton fall within the exception, we are then left with the common law on the rights of creditors to reach trust income and corpus where the trust was created by the debtor and the trustees have discretion to distribute income and corpus to him. We have found no cases (and petitioners have cited none) suggesting that the courts of Washington would not follow the almost universally accepted rule of 1 Restatement, Trusts 2d, sec. 156(2). ³⁴1986 U.S. Tax Ct. LEXIS 113">*180 Accordingly, we find that because decedent's 86 T.C. 785">*819 creditors could reach the maximum amount which, under the terms of the trust declarations, could be distributed to him, decedent's transfers to the trusts are includable in his gross estate under section 2036(a)(1). ³⁵

Section 6651(a)³⁶ imposes an addition to tax for the failure to file a return required by section 6018 (estate tax returns), "unless it is shown that such failure is due to reasonable cause and not due to willful neglect." As respondent does not contend that petitioners' failure to file an estate tax return was due to willful neglect, we need only decide whether, under the statute, Jerre's reliance on the advice of his attorney constituted "reasonable cause" for failure to file.

1986 U.S. Tax Ct. LEXIS 113">*182 The regulations define "reasonable cause" sufficient to excuse the failure to file a return as the exercise of "ordinary business care and prudence." Sec. 301.6651-1(c)(1), Proced. & Admin. Regs. In a recent case, the Supreme Court sought to clarify the meaning of "reasonable cause" in situations where an executor relied upon legal advice in deciding not to file an estate tax return for the estate. United States v. Boyle, 469 U.S. 241">469 U.S. 241, 105 S. Ct. 687">105 S. Ct. 687 (1985). In Boyle, the executor of an estate argued that because he 86 T.C. 785">*820 relied upon counsel to timely file a return for the estate, his failure to file a return was due to reasonable cause. The Court held that reliance on an agent does not excuse the failure to make a timely filing of a tax return, and stated (469 U.S. 241">469 U.S. at 249-250):

Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor. * * * That the attorney, as the executor's agent, was expected to attend to the matter does not relieve the principal of his duty to comply with the statute. * * *

The Court distinguished, however, 1986 U.S. Tax Ct. LEXIS 113">*183 the case in which a taxpayer relied on the advice of his attorney that it was unnecessary to file a return at all. According to the Court, such reliance would constitute reasonable cause, even if the advice was erroneous. 469 U.S. 241">469 U.S. at 250. ³⁷ The instant one is just such a case. Jerre, as personal representative, consulted with Peter Lind, tax advisor to the Paxton family for many years, and was told that an estate tax return need not be filed for Mr. Paxton's estate. We find that Jerre's reliance on his counsel's advice that no return was necessary constituted reasonable cause for his failure to file a return, even if such advice was wrong.

As stated by the Supreme Court in Boyle:

When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are1986 U.S. Tax Ct. LEXIS 113">*184 not competent to discern error in the substantive advice of an accountant or attorney. To require the taxpayer to challenge the attorney, to seek a "second opinion," * * * would nullify the very purpose of seeking the advice of a presumed expert in the first place. * * * "Ordinary business care and prudence" does not demand such actions. [469 U.S. 241">469 U.S. at 251. Citation omitted.]

Accordingly, petitioners are not liable for the section 6651(a) addition to tax.

An appropriate order will be issued.