254 F2d 811 Kurz v. United States

254 F.2d 811

58-1 USTC P 11,762

Charles KURZ, Ruth C. Joseph, Thorkil Aschehoug, as
Executors under the Last Will and Testament of
Theodore H. Joseph, deceased,
UNITED STATES of America, Defendant-Appellee.

No. 332, Docket 24952.

United States Court of Appeals Second Circuit.

Argued April 17, 1958.
Decided April 30, 1958.

Eugene L. Bondy, of Bondy & Schloss, New York City (Bertram Braufman, of Bondy & Schloss, New York City, on the brief), for plaintiffs-appellants.

Gerard L. Goettel, Asst. U.S. Atty., S.D.N.Y., New York City (Paul W. Williams, U.S. Atty., and Benjamin T. Richards, Jr., Asst. U.S. Atty., New York City, on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.


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Here the executors under a will are claiming a refund of estate taxes paid by them on the value of a trust estate as to which their testator had retained a power of revocation. They argue that this trust for the benefit of children carried into effect only a provision of a separation agreement between him and his wife which, indeed, called for the trust, but without power of revocation. As District Judge Palmieri points out, however, in his well reasoned opinion, D.C.S.D.N.Y., 156 F.Supp. 99, it is both good sense and good law that these closely integrated and nearly contemporaneous documents be construed together, thus showing a retained power which makes the corpus taxable under I.R.C.1939, 811(d)(2). We affirm on the opinion below.