FLEMING, J. I dissent.
On a transfer for consideration of a future interest in property to take effect on the termination of a life estate, our statute requires the computation for inheritance tax purposes of the value of the consideration received at the time of the transfer in relation to the value of the future interest given away. Revenue and Taxation Code, section 13641, reads:
“If a transfer specified in this article is made during lifetime by a resident, or is made during lifetime by a nonresident of property within this State, for a consideration in money or money’s worth, but the transfer is not a bona fide sale for an adequate and full consideration in money or money’s worth, the amount of the transfer subject to this part shall be the excess of
(a) The value, at the date of the transferor’s death, of the property transferred, over
(b) An amount equal to the same proportion of the value, at the time of the transferor’s death, of the property transferred which the consideration received in money or money’s worth for the property transferred hears to the value, at the date of transfer, of the property transferred.” (Italics added.)
On valuation of future estates and obligations, Revenue and Taxation Code, section 13953, is controlling:
“The value of a future, contingent, or limited estate, income, or interest is determined in accordance with the rules, methods, and standards of mortality and value that are set forth in the actuaries’ combined experience tables of mortality, as extended, for ascertaining the values of life insurance policies and annuities and for determining the liabilities of life insurance companies, save that the rate of interest used [906]in computing the present value of the estate, income, or interest is four (4) per cent per annum. ’ ’ (Italics added.)
I agree with the majority opinion that we should accept the transaction in the form in which the parties cast it, that of an interest-free loan to Norman of $50,000, repayable on the termination of the trust, in return for which the lender’s sons were irrevocably designated as remaindermen of the trust. Otherwise the transaction would amount to the sale of a capital asset, and Norman’s tax liabilities would have increased rather than decreased. But, for the very reason we accept the transaction as a loan, we must recognize and take into our calculations the existence of an obligation to repay it. I also agree that an interest-free loan for a period of years may be valuable consideration and that we should calculate its value on an actuarial basis, as we should likewise calculate the value of the remainder interest given in return for the loan. While there is some doubt as to the period of time for the duration of the trust, whether for five lives or for three, I have tentatively accepted, as did the trial court, appellant’s calculations of total life tenancies of 47 years, a time which equals the expectancy of a single life tenant of the age of 12.1
On these assumptions Norman received a $50,000 interest-free loan repayable in 47 years on the termination of the life estates. At the time he received the loan the present value of his obligation to repay, discounted at 4 percent, was in rounded figures $11,500. Thus the value of the consideration he received amounted to $38,500. In return Norman parted with the remainder interest in over $750,000 worth of property, to take effect in enjoyment in 47 years, the present value of which, discounted at 4 percent, was then approximately $172,500. It seems clear to me that under our statutes less than adequate and full consideration was given Norman for this future interest, because the value of what he gave away was over four times the value of what he received.
Appellant, however, argues as follows: the present value of $50,000, discounted for 47 years at 4 percent is $11,500, which means that Norman received $38,500 for the property he transferred. However, the present value of the $756,000 he gave up should be discounted for 47 years at 8 percent, and when so discounted only amounts to $20,000. Using these [907]different rates of discount he reaches the conclusion that property worth $38,500 was received in return for property worth $20,000 given up, a more than adequate and full consideration, and hence none of the remainder interest is a taxable transfer of a future interest to take effect in enjoyment after the death of the transferor.
The basis of this legerdermain is to calculate the benefit of what one gets at 4 percent and discount the benefit of what one gives away at 8 percent, a combination which produces the following bizarre results:
Present value of $50,000, due in 47 years—$11,500
Present value of $750,000, due in 47 years—$20,000
In my opinion the Revenue and Taxation Code, by design, specifically attempts to achieve consistent, uniform results for all calculations of a theoretical nature involving the taxation of transfers of property in which the beneficial enjoyment is to take effect in the future. Any true calculation of relative values must offset 4 percent dollars against other 4 percent dollars in order to arrive at a valid relationship, a conclusion which I find not only logically sound but compelled by our statute, which declares flatly that the present value of a future estate is to be actuarially computed at 4 percent. (Rev. & Tax. Code, §13953.) Under this statute the taxpayer is no more justified in using 8 percent to reduce the amount of his tax than the State Controller would be justified in using 2 percent in order to increase the tax. A consistent, uniform basis of valuation removes taxpayer and government, alike, from the temptation to manipulate figures in order to overreach the other side. If we undertake to compare the present value of a future obligation to repay $50,000 with the present value of a future right to receive $750,000 maturing on the same date, then the value of the latter should always approximate fifteen times the value of the former, and a true calculation of the items will be:
Present value of $50,000—due in 47 years—$11,500
Present value of $750,000—due in 47 years—$172,500
In short, I do not believe our statute permits us to calculate the value of amounts paid at 4 percent and discount the value of future amounts to be received at 8 percent in computing relative values and determining the proportions they bear to one another. What was given away here was over four times as valuable as what was received, and to that extent the excess is taxable as a transfer of property to take effect in enjoyment [908]after the death of the transferor. (Rev. & Tax. Code, §§ 13643, 13644.)
The other point on valuation in the case is that the trust was subject to an obligation to pay death taxes and all other debts of the trustor and hence was less valuable on an actuarial basis than it appeared to be. It is quite true that the trust had many of the aspects of a testamentary disposition, and that if the trustor had run up extensive debts the trust, at least according to its terms, would have become obligated to pay them. In this respect the trust was not an irrevocable trust at all but was either a revocable trust or a testamentary disposition, and the trustor apparently considered it in this light, for he amended the trust on eight different occasions. But this weakness in the trust is of no value to appellant, for if we accept the logic of a testamentary disposition or a revocable trust, then the entire amount of the future interest would have become taxable on the death of the trustor because no effective transfer of property ever took place earlier. (Rev. & Tax. Code, §§ 13601, 13646, 13951.) But, since both the state controller and the executor accepted the trust at face value as a true irrevocable trust, the court is entitled to do likewise, again at face value.
I would reverse the ease with directions to the trial court to determine on the basis of actuarial tables at 4 percent what proportion of the transfer was made for valuable consideration and what was not and to calculate inheritance tax on the latter. There may be complications in addition to those discussed. For example, in 1958 the trustor amended the trust to eliminate two lives from the duration of the trust. Should this factor be found aetuarially significant it would reflect an accelerated vesting of the future interest of the two remaindermen, an acceleration wholly taxable to the extent of its value on the date of the transferor’s death. (Rev. & Tax Code, § 13951.)
According to Actuaries’ Combined Experience Table of Mortality, the life expectancy of a 12-year-old is 47.01 years.
Based on the same tables, the present value of $1 due on the death of a person 12 years old is 0.22873. (Cal. Admin. Code, tit. 18, Reg. 13952(2), Table B.)