Robert H. BACHLER, Executor of the Estate of E. Murielle Wunderlich, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee., United States Court of Appeals, Ninth Circuit., 281 F.3d 1078, No. 00-17239., March 1, 2002
Robert H. BACHLER, Executor of the Estate of E. Murielle Wunderlich, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
281 F.3d 1078
March 1, 2002.
Argued and Submitted Feb. 11, 2002.
Filed March 1, 2002.
Karl D. Belgum, San Francisco, CA, for the plaintiff-appellant.
Joan I. Oppenheimer, Assistant United States Attorney, Washington, DC, for the appellee.
Appeal from the United States District Court for the Northern District of Califor╜nia, Claudia Wilken, District Judge, Pre╜siding.
Before: D.W. NELSON, NOONAN and HAWKINS, Circuit Judges.
NOONAN, Circuit Judge.
Robert H. Bachler ("the Executor"), ex╜ecutor of the estate of E. Murielle Wun╜derlich, appeals the judgment of the dis╜trict court for the Northern District of California denying his suit for refund of estate tax erroneously paid pursuant to Internal Revenue Code ╖ 2612(c). We hold that the tax was paid upon a transfer of property by a general power of appoint╜ment under a trust that became irrevoca╜ble in 1976, and was therefore a genera╜tion-skipping transfer exempted by ╖ 1433(b) of the Tax Reform Act of 1986, Pub.L. No. 99-514, 100 Stat.2085, from the generation-skipping transfer tax ("GST") imposed by 26 U.S.C. ╖╖ 2601-2663. The judgment of the district court is according╜ly reversed, and the case remanded for entry of judgment in favor of the Execu╜tor.
Martin C. Wunderlich died on May 20, 1976. Article Eight, sections I and II of his will established a trust in favor of his wife E. Murielle Wunderlich, providing her with the income for life plus such amounts of corpus as the trustees in their discretion should choose to give her, and the remain╜der on her death to be distributed "as my wife may appoint by a will or Codicil there╜to specifically referring to and exercising this general power of appointment."
E. Murielle Wunderlich died on No╜vember 20, 1997. Her will stated:
Under the Will of my husband, MAR╜TIN C. WUNDERLICH, dated June 4, 1973, and Codicil thereto dated June 8, 1983, which were admitted to probate in the Superior Court of San Mateo Coun╜ty, California, on June 16, 1976, I have a general testamentary power of appoint╜ment to direct distribution of the assets of Trust A of the Trust Under the Will of MARTIN C. WUNDERLICH. I hereby exercise that general testamen╜tary power of appointment over said Trust A by appointing all trust assets subject to it as follows:
Two-fifths of the remainder of the trust were thereby allocated in equal shares to her six grandchildren.
On August 20, 1998, the Executor filed a tax return for her estate and paid a GST of $2,043,357.55.
On August 31, 1999, the Executor filed a claim for refund of this amount. On May 4, 2000, no action having been taken on the claim, the Executor filed this suit.
On June 16, 2000, the Executor moved for summary judgment. On August 25, 2000, the United States filed a cross-mo╜tion for summary judgment. No facts were in dispute. After a hearing, the dis╜trict court granted summary judgment to the United States. The court noted that the GST could have been escaped if the power of appointment had been exercised not to appoint property to the grandchil╜dren and concluded that ╖ 1433(b) did not mean to exempt a transfer that was not irrevocable after 1986. Judgment was en╜tered for the government.
The Executor appeals.
The GST was first imposed by statute of October 4, 1976, Internal Revenue Code ╖ 2601. By statute of October 22, 1986, the statute was amended to include certain transfers. At the same time it was provid╜ed as follows:
╖ 1433. Effective Dates
(b)(2) Exceptions-The amendments made by this part shall not apply to╜(A) any generation-skipping transfer under a trust which was irrevocable on September 25, 1985, but only to the extent that such transfer is not made out of corpus added to the trust after September 25, 1985.
The trust for his wife established by the will of Martin H. Wunderlich became irre╜vocable with his death on May 20, 1976. No corpus was added after September 25, 1985. His wife exercised the general pow╜er of appointment that she possessed un╜der his will. The property thereby transferred to her grandchildren exactly meets the description of a transfer excepted from the GST by ╖ 1433(b)(2)(A).
This straightforward reading of the stat╜ute is disputed by the government. It argues that ╖ 1433(b)(2)(A) "was never in╜tended to provide an exemption from the GST tax in these circumstances," i.e., where the holder of the general power of appointment was not locked into a situa╜tion where the GST was inescapable. The government adds that a general power of appointment is substantially the same as outright ownership and so is generally treated as part of a decedent's estate, while release of an inter vivos power of appointment is treated as a gift under I.R.C. ╖ 2514. The government admon╜ishes us to read ╖ 1433(b)(2)(A) in context with the rest of the Internal Revenue Code, as all parts of a statute should be read in the context of the whole statutory scheme, FDA v. Brown & Williamson To╜bacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
More particularly, the government re╜fers to the other two exceptions made in ╖ 1433(b)(2). One exempts a transfer made by a decedent who could not escape the 1986 tax because he was mentally in╜competent at the time of the 1986 law's enactment. ╖ 1433(b)(2)(C). The other ex╜empts a generation-skipping transfer made under a will executed before the date of the enactment of the tax act, if the dece╜dent died within two months of the Act's enactment. ╖ 1433(b)(2)(B). The govern╜ment argues that the narrowness of these exceptions should narrow the construction of ╖ 1433(b)(2)(A).
The government finds stronger support by way of analogy with E. Norman Peter╜son Marital Trust v. Commissioner, 78 F.3d 795 (2d Cir.1996). In this case Peter╜son died in 1974, leaving his wife the life beneficiary of a trust with a general testa╜mentary power of appointment and a provision that, if she did not exercise the power, the remainder was to go to the grandchildren. She died in 1987, not hav╜ing exercised the power. Seeking to sus╜tain the GST on the transfer to the grand╜children, the government relied on Temp. Treas. Reg. ╖ 26.2601-1(b)(1)(v)(A), which defined the lapse of a general power of appointment as an addition of corpus to the trust. Judge Calabresi in a thoughtful opinion sustained the regulation as a reasonable interpretation of the statute so that, by the statute's own terms, the trans╜fer did not qualify as an exception. But that case is not ours. Here nothing was added to the corpus.
Our case, rather, is the same as Simpson v. United States, 183 F.3d 812 (8th Cir.1999), where, on facts substantial╜ly similar to ours, Judge Richard Arnold ruled that the exercise of a general power of appointment created by a trust was entitled to the exception explicitly created by ╖ 1433(b)(2)(A). The transfer there, as here, was "under" the trust. The transfer could not have been effected if it had not been under the trust. The exception in the statute, as Judge Arnold observed, is not for a transfer which was irrevocably at the time of enactment of the statute but for a transfer under a "trust which was irrevocable." Id. at 814. The first place to find the purpose of a statute, as Judge Arnold also remarked, is in its words. Id . The statute creating the exception, careful╜ly drafted to exclude additions to the trust corpus, makes no exclusion for the exercise of a general power of appointment. Act╜ing under the trust created by her hus╜band, Murielle Wunderlich fitted her gifts to her grandchildren so that they fell with╜in the exact wording of ╖ 1433(b)(2)(A). 1
1. We do not express any opinion on the validity of Treas.Reg. ╖ 26.2601-1(b)(1)(i), as amended by T.D. 8912 (1999), which was not at issue in this case.
REVERSED and REMANDED for proceedings consistent with this opinion.