Docket No. 4923.

5 T.C. 645 (1945)


United States Tax Court.

Promulgated August 28, 1945.

Attorney(s) appearing for the Case

H. Stewart Dunn, Executor, for the petitioners.

Homer F. Benson, Esq., for the respondent.

The Commissioner determined a deficiency of $1,406.31 in estate tax. The petitioners assign as error the action of the Commissioner in disallowing, as part of the deduction for administration expenses, $3,800 of executors' commissions and $4,000 of attorneys' fees.


Robert H. Hartley died on September 13, 1941, while residing in Pittsburgh, Pennsylvania. His last will and testament was probated in the office of the register of wills of Allegheny County, Pennsylvania. Louis M. Banks and H. Stewart Dunn are executors under his will.

The executors filed an estate tax return for the decedent with the collector of internal revenue at Pittsburgh. This showed the personal property owned by the decedent, and real estate held by him and his wife, Marie W. Hartley, as tenants by the entireties. The gross estate for basic tax, as shown on the return, amounted to $153,150.50, from which deductions were claimed in the amount of $110,843.40, leaving a net estate for basic tax of $42,307.10. The deductions claimed included executors' commissions in the amount of $4,500 and attorneys' fees in the amount of $4,500. The Commissioner, in determining the deficiency, allowed a deduction of $700 for executors' commissions and a deduction of $500 for attorneys' fees, and disallowed the additional amounts claimed. He also made several other small adjustments which are not here in controversy.

The property owned by the decedent and his wife as tenants by the entireties was not a part of the decedent's estate under the laws of Pennsylvania, and was not administered or accounted for by his executors in the administration of the decedent's estate before the Orphans' Court of Allegheny County, Pennsylvania, where the estate was administered and settled. The amount of $700 as executors' commissions and $500 as attorneys' fees, allowed by the Commissioner as deductions in determining the deficiency, were the full amounts of these administration expenses allowed by the Orphans' Court in the administration and settlement of the estate of the decedent.

The executors of the decedent were required by Federal estate tax law to include in the gross estate of the decedent the property held by him with his wife as tenants by the entireties. The decedent and his wife, as tenants by the entireties, owned several pieces of property in Pittsburgh. There were some delinquent taxes against these properties at the time the decedent died. The executors made a study of these properties in order properly to prepare the Federal estate tax return. They entered into an agreement with the widow of the decedent, pursuant to which she agreed to pay them $3,800 in addition to the $700 allowed as an administration expense in the estate of the decedent, and she also agreed to pay attorneys' fees of $4,000, representing the difference between $4,500 and the $500 allowed as attorneys' fees in the administration of the decedent's estate. She had not made payment of either of these amounts up to the date of the hearing in this case.



Section 812 of the Internal Revenue Code provides that for the purpose of the tax the value of the net estate of a decedent shall be determined by deducting from the value of the gross estate such amounts for administration expenses "as are allowed by the laws of the jurisdiction * * * under which the estate is being administered." The Commissioner has allowed the full amount of executors' commissions and attorneys' fees which were claimed and allowed in the administration of this decedent's estate. The record in this case does not show that any larger amount for these items was allowed by the laws of Pennsylvania. The deduction for administration expenses is to cover the actual expenses of administering the estate of the decedent under the laws of the sovereign authority which has jurisdiction over the administration of that estate. The amounts here in controversy are not expenses of administering the estate of this decedent under the laws of Pennsylvania. They are not chargeable against the decedent's estate at all. They are amounts which his widow has agreed to pay the executors and their attorneys in connection with the filing of the decedent's Federal estate tax return. The Tax Court can not legislate, and no matter how reasonable some additional deduction might appear to be, it can allow only those deductions which are proper under the statutes which Congress has enacted. The items here in controversy are not deductible under those statutes and, therefore, can not be allowed.

Decision will be entered for the respondent.


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