535 F2d 254 Sutton v. Commissioner of Internal Revenue

535 F.2d 254

74-2 USTC P 13,009

Leonard SUTTON, Executor of the Estate of Sam Sutton, Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee.

No. 74-1123.

United States Court of Appeals,
Fourth Circuit.

Argued May 8, 1974.
Decided June 19, 1974.

Lewis Allen, Norfolk, Va. (Louis B. Fine and Fine, Fine, Legum & Fine, Norfolk, Va., on brief), for appellant.

Alfred S. Lombardi, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C. (Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks and Loring W. Post, Attys., Tax Div., U. S. Dept. of Justice, Washington, D. C., on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and WINTER and FIELD, Circuit Judges.

PER CURIAM:

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1

Confronted with a determination of a deficiency in estate taxes, the petitioner challenged the Commissioner's action in a proceeding in the United States Tax Court. The issues presented to that court were (1) whether the present value of the surviving spouse's right to receive $400.00 monthly for her lifetime pursuant to the terms of a prenuptial agreement was deductible by petitioner under Section 2053(a)(3)1 as a claim against the estate; and (2) whether, in the alternative, such present value of the monthly payments qualified for the marital deduction allowance under Section 2056.

2

The Tax Court held that the widow's claim failed to meet the test of Section 2053(c)(1)(A) that it had been contracted "for an adequate and full consideration in money or money's worth." This determination was buttressed by Section 2043(b) which provides that "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.' " The Tax Court further held that the right to such payments did not qualify for the marital deduction since it was a "terminable interest" within the meaning of Section 2056(b). We accept these determinations of the Tax Court and affirm upon its opinion.2

3

AFFIRMED.

1

All statutory references are to the Internal Revenue Code of 1954, as amended

2

Leonard Sutton, Executor of the Estate of Sam Sutton, Petitioner v. Commissioner of Internal Revenue, Respondent. T.C. Memo. 1973-211