Petition — Robinson v. United States

Office - Sunreme Court, U.S.

82-389 FILED

me —+—388 1? 1982

No. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

MYRA B. ROBINSON, Petitioner

versus

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari

To the United States Court of A

For the Fifth Circuit

Petition for Writ of Certiorari

Port Worth Brief Printing Co., 610 South Jennings Street, Fort Worth, Texas 76104 Phone 617 532-4070

i

Question: Presented for Review

The only question presented for review is whether the

petitioner, MYRA B. ROBINSON, herein referred to as

the “petitioner,” made a taxable gift when, in 1976, she

gratuitously surrendered a special testamentary power

granted to her under Paragraph 6 of the widow’s election

wil! of her husband who died in 1972. Petitioner had

elected, in 1972, to accept under such will, which dis-

posed of her community interest. It was stipulated that

the value of what she received by such 1972 election

exceeded the value of what she surrendered thereby.

Parties

There are no parties hereto other than those named in

the caption of the case.

TABLE OF CONTENTS

Page

Questions Presented for Review ...........600ccceceseeeceues i

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EE 'é on dee ss scdphdantcdabhasees van sdteacects iv

Official Reports in Courts Below ..... 2.0... .00ccceceeeeesewes 1

Grounds for Invoking Jurisdiction ...............00ceeeeceeees 1

Constitutional Provisions, Statutes and Regulations Involved ...2

PGR UND GMNED o dcksuclitnevedcadadenceceseuhscccuccd 3

Basis for Tax Court’s Jurisdiction ............0.0escceeeeeeees 6

Argument in Support of Writ ............0ccceeceeeeeeeeeeees 6

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MUL co's space wdceee vets rbedat nods cobensdiod 13

IED Uc rnkdndhbiig ths doptdnne thecvktessoeken 14

TABLE OF AUTHORITIES

Page

Cases:

Burnet v. Guggenheim, 288 U.S. 280, 286, 53 S.Ct. 369,

Pee FE aes PU CR CED eV bbe. ducacscvcevssecccese 7, 10

Chase National Bank, 25 T.C. 617 (1955), rev'd on other

grounds sub nom Commissioner v. Chase Manhattan

Bank, 259 F.2d 231 (6th Cir., 1968) ... 2... 2.2... cece eeeeeee 10

Commissioner v. Nelson, 396 F.2d 519 (2nd Cir., 1968) ...... 7,10

Commissioner v. Siegel, 250 F.2d 339 (9th Cir., 1957) ........... 4

Commissioner v. Walston, 168 F.2d 211 (4th Cir., 1948),

affirming a divided Tax Court, 8 T.C. 72 (1947) .............. 12

Estate of Emma Bressani, 45 T.C. 373 (1966) ............. 10, 12

Estate of Martha R. Campbell, 59 T.C. 133 (last paragraph

ERTIES i is bas uees se dab ekehihecdivcdnendacuesrs 8

Estate of Christ v. Commissioner, 480 F.2d 171

SAS MEE Asks in ods 04W 4604 cab N Cdbe Vs ceccen vee ti 7, 10

Estate of Davis v. Commissioner, 440 F.2d 896

SS MEE Cocads onde ck ds ickbwethewe ss’ ccdvceseia 7,10

Estate of Gertrude Friedman, 40 T.C. 714 (1963) ........... 7, 10

Estate of Robert Rodger Glen, 45 T.C. 323 (1966)

DEE Vibavcssbacednvbdreneetetbedvcnccchesatens 7,10

Estate of Dora N. Marshall, 51 T.C. 696 at 701 (1969) .......... &

Estate of Isabelle M. Sparling, 60 T.C. 330 (1973),

rev'd on other grounds, 552 F.2d 1340 (9th Cir., 1977) .... 8, 10

Estate of Steinman v. Commissioner, 69 T.C. 804

SDS dotiachs ch dbbbkpisdetacals od ukovasenscntecs 12

First National Bank of Chicago, Trustee v. Commissioner,

SE Be TO, FIG cine iswinc cdc ccsccsvcccccccncnve 8

Greer v. U.S., 448 F.2d 287 at 945 (4th Cir., 1971) ............. 10

TABLE OF AUTHORITIES (Continued)

Page

Jewett v. Commissioner, U.S. , 102 S.Ct.

Se, SE MA UO CHOU 2a vin w wda ee ncbwedeuectoccciccuve’ 7

Lehman v. Commissioner, 109 F.2d 99 (2nd Cir., 1940),

cert. den. 310 U.S. GBT (IBEG) 2... nce cece ccc ccccncccccceves 8

Merrill uv. Fahs, 324 U.S. 308 (1945) .............666. SH Ry Ce 9

ie Bc FPS GS TA, SSO. sev cca ceebbs or sccvcctvsies 10

Old Colony Trust Co. v. U.S., 423 F.2d 601 at 603

EE nd 0b bo docs nab db ducked dhbwn Kita éteces thee cea 11

Sanford’s Estate v. Commissioner, 308 U.S. 39 (1989) .......... 6

Schultz v. U.S., 33 A.F.T.R.2d 74-199 (4th Cir., 1974) .......... s

Seaman v. U.S., 156 F.2d 719 (7th Cir., 1946) ..............64.. s

Self v. U.S., 142 F. Supp. 989 (Ct. Ci., 1956) ............00005- 12

Marva Trotter Barrow Spaulding, 27 T.C. 479 (1956) aff'd on

other grounds sub nom First National Bank of Chicago,

Trustee v. Commissioner, 255 F.2d 759 (7th Cir., 1958) ........ x

Augustus E. Staley, 41 B.T.A. 752 (1940) ........ 0.6 ccc eee eees S

Zillah Mae Turman, 35 T.C. 1123 (1961) ....... 0.6.6.6 e cee ee 10

U.S. v. Byrum, 408 U.S. 125 (1972), esp. footnote 6 ........... ll

U.S. v. Field, 266 U.S. 257 (1921) ..... ccc ccccccccsccccccvess 12

U.S. v. Gordon, 406 F.2d 332 at 341 et seq., esp. footnote

ED Sint oube ke bd cbdbh Sb abande osotds cereus 7,9

U.S. v. Stage, 376 U.S. UB (19GB) 2.2... cece eee e cece reneces 8

Vardell’s Estate v. Commissioner, 307 F.2d 688

ED saw db onto nen Seder ebeeraa dees cerachewes 7,10

Winthrop v. Meisels, 281 F.2d 694 (2nd Cir., 1940) ............ 10

Constitution:

Wee Cees, Gee. Bee BOR Bic. ccc cevhubeccacdbacasscden 1

TABLE OF AUTHORITIES (Continued)

Page

Statutes, Rules, Regulations and Other Authorities:

Supreme Court Rule 17, Paragraphs 1(a) and l(c) .............. 2

A IE noc 444 ded ed dhebePened.s tenes desecsovuest 1

Revenue Act of 1932

IE. CL UL k'npndd Chae ce vancedpeandonstsnced sth eeenhon ]

ED cobs o cae bobancidssvewtdbavbevees céuvcdecabeebenn 4

Internal Revenue Code of 1954 (26 U.S.C.):

RIED i cakWecccdbcdeccchcsecdcceccsnccces (asewen 12

SED cca nn Gacbendcevsatenerisdbeveccccsecacedtevipen 10

cs 'oh bo dubbe don¥ewsvincessiunéabeu’ 10, 11

os. csc nb deced Abeer tepeccuteuecceual 10, 11

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cao kan pagedeepebeetanetec caeddeusedeneennl 12

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SE sons ving bedvcesbdevesvatexhbe 6abscpbecttapeeenl 8

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ING is ci dao cabdienedadtecccecadatvalinpeenaey 12

OD Wa din nn Cdsbedhceaccbbsdotobhesnsccaccouaes 12

Section 25.2514-3(e), Example (3) ............ ese ceeeeeseeees 12

Revenue Rulings:

Revenue Ruling 79-327, 1979-2 C.B. 342 ..... 0... ceeeeeeeees 12

Revenue Procedures:

—

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vil

TABLE OF AUTHORITIES (Continued)

Page

Treatises:

Merten’s Law of Federal Gift & Estate Taxation, 1959 Ed.:

Legislative History:

H. Rep. No. 708, 72nd Cong., Ist Sess. (1939-1 C.B.,

8. Rept. No. 665, 72nd Cong., ist Sess. (1939-1 C.B.,

a a ee eae

v te Ay: a -

No.

SUPREME COURT OF THE UNITED STATES

MYRA B. ROBINSON, Petitioner

versus

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari

To the United States Court of Appeals

for the Fifth Circuit

Petition for Writ of Certiorari

Official Reports in Courts Below

The official reports of this case in the courts below are

found in 75 T.C. 346 (1980) and in 675 F.2d 774 (5th

Cir., 1982).

Grounds for Invoking Jurisdiction

(a) The date of the decision of the Fifth Circuit sought to

be reviewed is May 14, 1982.

(b) The date of the order denying petitioner’s motion for

rehearing of such decision is June 10, 1982.

(c) The statutory provisions conferring jurisdiction to

grant the requested writ of certiorari are:

(1) U.S. Const. Art. 3, Sec. 2, Cl. 2

(2) 28 U.S.C. 1254(1)

“it

(3) Supreme Court Rule 17, Paragraphs 1(a) and

1(e):

(A) The decision below is in conflict with the deci-

sions in other circuits.

(B) The decision beiow is in conflict with applica-

ble decisions of this Court.

Constitutional Provisions, Statutes and

| Regulations Involved

The constitutional provisions, statutes and regulations

which the case involves, including those in support of

jurisdiction, are set out, in pertinent part, in the appen-

dix, and are cited below:

Authority Reference

U. S. Constitution Article 3, Section 2, Cl. 2 .... A-31

Supreme Court Rule 17, Paragraphs l(a) and 2(c) A-31

SE on dns, cians osensaie ehh A-32

Revenue Act of 1932

NE icin, bade o nal bWhile cave ooadebee A-32

dis cna ete thenesccoddenecede A-33

Internal Revenue Code of 1954

oho ba Beak ccvesedccted A-33

Ne a a Ce aeoubenk A-34

IED init. 1 elias owhbbas coendece’ A-35

IE ii ks OU on eee. sive shoul A-36

I in AE te, ok ois. Ceeceoninel A-38

EE RS EOS eS SEN EN py Al

a i odes cauie ade kine A-4l

ES os cle Sach cates conaewenece A-42

6d cn act etee ee use ceneceue A-42

I Ss ohink eet be ehis in on on oh ealth A-42

Treasury Regulations

Section 25.2511-1(g)(1) .......... cece eeneeees A-44

Section 25.2511-1(h) ............. seks kc bake A-45

in. on nes bacccecencess A-48

NTE bc cc ccbnvcceccecvcccess A-52

Section 25.2514-3, Example (3) ............... A-53

Statement of the Case

All evidence was stipulated. From such stipulations,

and the opinions of the courts below, the following rele-

vant facts are presented:

1. On February 27, 1972, G. R. Robinson, petitioner’s

husband, died testate and his will was admitted to pro-

bate on March 16, 1972. (Stips. 5 and 6)

2. His will gave petitioner a choice — she could elect to

let her husband’s will direct the disposition uf her share

of their community property and take fully under the will

or she could retain her right to freely dispose of her com-

munity property share and take only a specific bequest

of personal effects under the will. (75 T.C. 346, 347 and

675 F.2d 776)

3. On August 27, 1972, petitioner filed an election to

accept the will’s direction of the disposition of her com-

munity share. (75 T.C. 347 and 675 F.2d 776)

4. Pursuant to her election and her husband's will, peti-

tioner’s community property share became the corpus of

the “Myra B. Robinson Trust” (hereinafter wife’s trust)

while her husband’s interest in the community and any

separate property he may have owned which was not

specifically bequeathed were placed in the “G. R. Robin-

son Estate Trust” (hereinafter husband’s trust). The

>

4

terms of the wife’s trust provide petitioner with a right

to all the net income of that trust. for life, while under the

husband’s trust she has a right to an annual amount from

that trust equal to 4 percent of the initial corpus. Upon

petitioner’s death, the corpora of the two trusts are to be

combined and then divided into equal shares for certain

descendants of petitioner and her deceased husband. (75

T.C. 347 and 675 F.2d 776)

5. Apart from her powers as trustee (held not, to be rel-

evant here), petitioner had the following powers over the

wife’s trust:

During the life of my wife, she shall have the

power, by recordable instrument delivered to the

Trustee, to appoint any part or all of my wife’s Trust

free from such Trust to any one or more of our issue

(or to the surviving spouse of any of our then

deceased children) in such shares, manner and pro-

portions as she shall see fit. In addition, my wife

shall have the power, by recordable instrument

delivered to the Trustee or by Will, to appoint any

part or all of my wife’s Trust free from such Trust to

any one or more charities in such shares, manner

and proportions as she shall see fit. Any such power

described in this paragraph may be exercised only

in a gratuitous way and not in a way which

imposes any condition upon the recipient

thereof. * * *

Thus, petitioner could appoint any part of the wife’s trust

to designated appointees or to qualifying charities. On

March 26, 1976, petitioner executed a valid release’ of

these appointment powers. (75 T.C. 348 and 675

F.2d 776)

6. When the wife’s trust was created, its value was

$731,741.94. The husband’s trust had a value of

$483,962.01 when it was created. Petitioner was born on

‘The Fifth Circuit asked why petitioner released the power. The answer

below was given (but not as a part of the trial record) in oral argument.

I, undersigned counsel, prepared the widow's election wills of the peti-

tioner and her deceased husband. They were prepared in the light of var-

ious tax issues and planning as | understood them. Inflation was not then

a serious problem »nd we were primarily interested in securing the Section

2043 deduction. Two unexpected things occurred.

First, decedent’s husband died prematurely in a car accident. As a resu':

her “received” annui.y was of greater, and her “surrendered” remainder

was of less, value than anticipated when the wills were signed.

Second, by the time of the release inflation was beceming a factor, and

the Section 2043 offset would bo relatively less valuabie than exclusion of

the trust.

In fact, it did not dawn on any of us until well into estate administration

that petitioner had received an annuity greater than ‘er surrendered

remainder. When we realized this, the possibilities of excluding the trust

from her estate seemed apparent. However, we were not aware at any time

prior to briefing for the Tax Court case that the issue had been decided in

any litigated case.

The only reason for the relinquishment of the power was the petitioner's

long term uncertainty of how to plan her own affairs by reason of not know-

ing whether the trust would be include’ in her estate. The Service has a

policy of not ruling on estate tax matters for living persons. Rev. Proc. 72-

3, Section 3.02, 1972-1 C.B. 698. We were aware of the well established

principle that estate and gift taxes are in pari materia. We felt that the

only way to be certain about the future estate tax status of the trust (for a

relatively young widow) was to release the retained power and test the

matter by litigation under the gift tax laws.

Special efforts were made to get the gift tax returns audited. Then the

examining agent filed a report finding no gift, hence no tax. While normally

a favorable taxpayer result, we asked the district director in Dallas to seek

technical advice from the Washington office, and we were relieved when

Washington decided to propose a tax.

i

December 20, 1919. (75 T.C. 348 and 675 F.2d 777

footnote 6)*

7. The value of whatever petitioner gave up, with

respect to her property passing under the will of G. R.

Robinson, by reason of her election to take under his

will, was less than the value of what she received under

such will, with respect to her husband's property, by rea-

son of her election filed on August 22, 1972. (Stip. 15, 75

TC. 352 and 675 F.2d 777)

8. In its statutory notice of deficiency, the government

asserted a gift tax deficiency of $58,676.97 based on its

determination that, when petitioner released her special

power to appoint, she made a taxable gift of the remain-

der in the wife’s trust corpus (her community property

share). (75 T.C. 348)

Basis for Tax Court’s Jurisdiction

The basis for the jurisdiction of the Tax Court in this

case is 26 U.S.C. 7442.

Argument in Support of Writ

The Fifth Circuit recognized that this Court held in

Sanford’s Estate v. Commissioner, 308 U.S. 39 (1939)

that [citing from 675 F.2d 774 (footnote 13)):

“(tJhere is nothing in the language of the statute,

and our attention has not been directed to anything

*The disputed adjustment in interest referred to in footnote 6 at 675 F.2d

774 was $23,176.19 (as set out in footnote 2 of 75 T.C. 348). If the govern-

ment was correct in its contention thereon, it would not change the accu-

racy of the stipulation referred tc in Statement of Fact No. 7 above. The

$236,622.58 referred to at 675 F.2d 774 would simply become $225,285.80,

a value received still greater than the $196,085.72 surrendered.

7

in its legislative history to suggest that Congress

had any purpose to tax gifts before the donor had

parted with his interest in the property given,

or that the test of the completeness of the taxed gift

was to be any different from that to be applied in

determining whether the donor has retained an

interest such that it becomes subject to the estate tax

upon its extinguishment at death ... The two

[taxes] are in pari materia and must be ‘construed

together.

“Accord, Jewett v. Commissioner, U.S.

, 102 S.Ct. 1082, 71 L.Ed.2d 170 (1982);

Burnet v. Guggenheim, 288 U.S. 280, 286, 53 S.Ct.

369, 371, 77 L.Ed. 748, 751 (1933).”

(Emphasis added)

Thus, to support the Fifth Circuit’s decision, it was

essential for it to hold, and it did hold, erroneously, that

had petitioner not released such power during her life,

the wife’s trust would have been included in her estate at

her death. See 675 F.2d 779.

This holding was contrary to every other case (includ-

ing three other circuits) which had considered the ques-

tion. Estate of Davis v. Commissioner, 440 F.2d 896 (8rd

Cir., 1970); Commissioner v. Nelson, 396 F.2d 519 (2nd

Cir., 1968); Estate of Christ v. Commissioner, 480 F.2d

171 (9th Cir., 1973); Estate of Gertrude Friedman, 40

T.C. 714 (1963); and Estate of Robert Rodger Glen, 45

T.C. 323 (1966) (full court). It is also believed to be con-

trary to the philosophy of prior Fifth Circuit authority.

See Vardeli’s Estate v. Commissioner, 307 F.2d 688 (5th

Cir., 1962) and U.S. v. Gordon, 406 F.2d 332 at 341 et

seq., esp. footnote 15 (5th Cir., 1969).

The theory applicable in each of these cases, and in the

present case, is that one who provides the consideration

for a “transfer” is the “transferor” thereof. Under this

landmark principle, the power which petitioner released

in 1976 was not created by her. By election in 1972 to take

under the will, she received benefits stipulated to be of

greater value than she surrendered. She surrendered no

net value, and thus made no gift, to any one by virtue of

such election (and later release of powers). The principle

is well established that when A makes a gift to B on con-

dition that B make a gift to C, the entire gift to C (to the

extent of the transfer from A to B) is from A, not B?

"Rey. 25.2511-1(h)(2)*;, Reg. 25.2611-1(h(2); Lehman v. Commissioner, 109

F.2d 99 (2nd Cir., 1940), cert. den. 310 U.S. 637 (1940); Estate of Dora N.

Marshall, 51 T.C. 696 at 701 (1969); U.S. v. Stapf, 375 U.S. 118 (1963);

Estate of v. Commissioner, 552 F.2d 1340 (9th Cir., 1977); Seaman

v. U.S., 156 F.2d 719 (7th Cir., 1946); Estate of Martha R. Campbell, 59

T.C. 133 (last nth emganetnes leeetpmety ay i ae ert

ing, 27 T.C. 479¢ aff'd on other grounds sub nom First N. Bank

, Trustee v. Commissioner, 255 F.2d 759 (7th Cir., 1968); Augus-

41 B.T.A. oo Schultz v. U.S., 38 A.F.T.R.2d 74-199

Under the so-called “widow’s election will)’ such as the

one here, the method of determining who the donor (or

transferor) is is well established. That the term “ade-

quate and full consideration in money or money's worth”

has the same meaning in the gift tax provisions (e.g.,

Section 2512) as ii: the estate tax provisions (e.g., Sec-

tions 2036 and 2043) is clear. Merrill v. Fahs, 324 U.S.

308 (1945). It is similarly established that one put to an

election under such a widow’s election will receives “con-

sideration” within the meaning of such estate and gift tax

term; and that the estate and gift tax results are deter-

mined by reasoning that such widow gives (or transfers)

a remainder interest in her own property (passing by

such election) and receives such consideration in the

form of a life estate’ in the decedent’s net property given

therefor. Commissioner v. Siegel, 250 F.2d 339 (9th Cir.,

1957); Chase National Bank, 25 T.C. 617 (1955), rev’d on

was not an adequate and full consideration in money or money’s worth

for that which was received by B;.. .”

shall be deemed a gift. For if A selis property

worth $10,000 to B for $1,000, there is a gift of F

al

10

other grounds sub nom Commissioner v. Chase Man-

hattan Bank, 259 F.2d 231 (5th Cir., 1958); Vardell’s

Estate v. Commissioner, 307 F.2d 688 (5th Cir., 1962);

Estate of Isabelle M. Sparling, 60 T.C. 330 (1973), rev'd

on other grounds, 552 F.2d 1340 (9th Cir., 1977); Estate

of Emma Bressani, 45 T.C. 373 (1966); and Zillah Mae

Turman, 35 T.C. 1123 (1961).

Admittedly, those cases above® which petitioner

alleges are contrary to the decision below dealt with

“dominion and control” under what is now Section

2036(a)(1), whereas the power held by petitioner would

have been tested by Section 2036(a)(2).” However, it is

incredible that “dominion and control” should be excused

in Section 2036(a)(1) and not in Section 2036(a)(2) when

the former involves retention of a greater personal eco-

nomic benefit than the latter. Clearly, Section 2036(a)(2)

type powers do not preclude deductibility in income tax

cases. Winthrop v. Meisels, 281 F.2d 694 (2nd Cir., 1940)

and W. D. O’Brien, 46 T.C. 583 (1966) [this O’Brien case

being cited for estate tax purposes by Greer v. U.S., 448

F.2d 937 at 945 (4th Cir., 1971)].

The aggregation of both Section 2036(a)(1) and

2036(a)(2) type powers is no different from having a sin-

gle such power. The general principle of aggregation of

powers being different from the separate powers them-

*Esiate of Davia v. Commissioner, 440 F.2d 896 (3rd Cir., 1970); Commis-

sioner v. Nelson, 396 F.2d 519 (2nd Cir., 1968), Estate of Christ v. Com-

missioner, 480 F.2d 171 (9th Cir., 1973), Estate of Gertrude Friedman, 40

T.C. 714 (1968) and & state of Robert Rodger Glen, 45 T.C. 323 (1966).

"Clearly, petitioner did not have the power to alter, amend or revoke under

Section 2088 as suggested by the Fifth Circuit at 675 F.2d 773 and 774, foot-

note 12. Such a power would clearly have destroyed the measurability

referred to at 675 F.2d 781, footnote 20. Burnet v. Guggenheim, 288 U.S.

280 (1988), cited at 675 F.2d 77%, involved such a power to revoke.

ll

selves was rejected under Section £036(a)(2) in Old

Colony Trust Co. v. U.S., 423 F.2d 601 at 603 (1st Cir.,

1970) (effectively overruling a prior contrary decision in

such circuit), and in U.S. v. Byrum, 408 U.S. 125 (1972),

esp. footnote 6. [The Court should not be misled by the

holding in Old Colony that a separate power to designate

beneficiaries nevertheless caused includability under

Section 2036(c)(2). The result in such case would have

been the same had a life estate been retained, under Sec-

tion 2036(a)(1).)

So strong was the fascination of both lower courts with

petitioner’s “retention” of powers that they lost sight of

the overriding, underlying purpose of the retention (i.e.,

dominion and control) provisions. They are designed to

keep one who makes an estate-depleting “transfer” from

enjoying a tax reduction therefrom if he has retained

economic control over the gift. A “transfer” by the tax-

payer is essential to taxation. (See footnote 3, especially

following first paragraph.) The authorities overwhelm-

ingly establish that the retention provisions have no

application when there was no estate-depleting “trans-

fer” By stipulation in this case, there was none. The fol-

lowing examples are illustrative:

Situation 1— A gives $10 to B on condition that B

put $9 in a trust for A’s children, C and D, from

which trust B “retains,” hn. aaa

appoint such trust as between C and

Situation 2— Paras nae

put $9 in a truat for A’s children, C and D, from

which trust B “retains;’ by agreement, a life

estate.

In neither case has B done anything to deplete her

estate, though literally she has “retained” dominion and

control over the trust property. The situation is identical

12

in substance and result if B is eliminated from the trans-

actional part, and A simply creates a trust for C and D

giving B either a special power to appoint or a life estate,

or both.

Since petitioner is not the one who created wife’s trust,

for the reasons above set out, no gift can be predicated

upon the provisions of Reg. 25.2511-2, as was done by the

Fifth Circuit at 674 F.2d 777, footnote 5. By its terms it

applies only to a “donor;’ or one who has made a “trans-

fer.” See also the last sentence of Reg. 25.2511-1(g)(1);

and Reg. 25.2511-1(h) and Reg. #5.2512-8. By failing to

recognize this, the lower courts are prospectively impos- —

ing a double transfer tax upon petitioner contrary to the

philosophy of the clear policy implemented by the “full

and adequate” consideration provisions of Sections 2035-

2038, and by Section 2043.

For reasons cited in the courts below? no gift tax can

be predicated upon petitioner’s release of power if such

power is deemed created by her husband.

*As to such a special and non-general power, there is no property interest

other than the right to third party recipients. See Estate of Stein-

man v. Commissioner, 69 T.C. 804 at 809 (1978) and Estate of Emma Bres-

sani, 45 T.C. 373 at 379 (1966). Congress has clearly excluded such powers

from taxability since they fail to as general powers of appointment

under Section 2514 (or Section 2041). U.S. v. Field, 255 U.S. 257 (1921) and

13

Summary

For the reasons, and based upon the authorities, set

out above petitioner respectively seeks certiorari.

Appendix

An appendix, as required by Rule 21(k), is set out

herein immediately following signature of counsel and

certificate of service. The opinions below are set out

therein (at A-1 and A-17)@riginall SigpeidiBiyna! provi-

sions, statutes and regulations required by Rule 21(f).

Respectfully su n Be

EE A

EDWARD R. SMITH

OF COUNSEL:

SMITH, BAKER, FIELD

& CLIFFORD, INC.

2112 Indiana Avenue

Lubbock, Texas 79410

806-792-0800

Attorneys for Petitioner

Myra B. Robinson

14

CERTIFICATE OF SERVICE

It is hereby certified that service of this Petition for

Writ of been made ~ oT | pbc

thereof on this day of ;

1982, in an envelope with postage prepaid, properly

addressed to the following parties:

=A DP

EDWARD R. SMITH