Kirkwood v. Bromley

MOORE, P. J. The State Controller appeals from the order allowing an inheritance tax refund.

Decedent Edith E. Off bequeathed two-thirds of the residue of her estate to the Shriners Crippled Children’s Hospital, a charity exempt from taxation. The amount of the gift exceeded the maximum allowed by Probate Code, section 41, which provides, in general, that under certain circumstances a testator may not leave in excess of one-third of his estate to charity to the exclusion of specified lawful heirs. The taxing authorities levied the inheritance tax on the assumption that certain of the decedent’s heirs would take a portion of the gift which the will designated for the charity. The order imposing the tax became final by lapse of time without appeal. When time for distribution arrived, those heirs who were entitled to take that portion of the gift to the charity in excess of one third of the estate acquiesced in the generosity of the testator. Such acquiescence resulted in the distribution of the residue in accordance with the terms of the will. By its order, the court distributed the estate without regard to the benefits reserved to such heirs by Probate Code, section 41. Thereupon, Elmer P. Bromley, executor of decedent’s estate, brought this action for refund of a portion of the taxes previously [518]assessed and paid. The trial court erroneously awarded the relief sought.

An order determining inheritance-tax liability is in the nature of an ordinary civil judgment. (Rev. & Tax. Code, § 14672.) The order having become final without appeal therefrom, its correctness may no longer be challenged. (Estate of Willis, 34 Cal.2d 782, 788 [215 P.2d 453].) Thus respondent cannot now argue that the heirs were never truly the transferees of any of the sums bequeathed to the charity and that the tax imposed on the assumption that they were such transferees was invalid. It is res adjudicata between the parties at bar that the heirs were the transferees of the sums for purposes of taxation.

However, section 14401 of the Revenue and Taxation Code provides an avenue of relief for taxpayers which may be pursued even after the order imposing tax has become final. As indicated, only such a statute may benefit respondent at this state of the proceedings. The section provides, inter alia, that if a tax has been paid on a transfer subject to a “ contingency which might burden, abridge, defeat, or diminish the . . . interest of the transferee, and the gift was valued without allowance for the . . . contingency,” the taxpayer should be allowed a tax refund when the contingency occurs and divests him of his gift. The “contingency” relieved against by the section “is the technical contingency of the type which may vest, divest or diminish an estate, as in the case of a contingent remainder ... in the sense usually employed in conveyancing, and with reference to the divesting or diminution of a presently vested or enjoyed estate by the vesting or coming into enjoyment of a contingent future estate.” (Estate of Willis, supra, 34 Cal.2d 782, 786.)