The opinion of the court was delivered by: BYERS
These are cross-motions for summary judgment under Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A. in a controversy which involves only a question of the taxability, for the purposes of the federal estate tax, of the sum of $ 62,400 assessed by the Collector of Internal Revenue for the First District of New York in connection with the death of George F. Molter on April 17, 1954.
The decedent was an employee in an executive capacity of the Socony Vacuum Oil Company (now known as Socony Mobil Oil Company, Inc.). There was credited to his widow as beneficiary designated by him the said sum which represented his salary for two years, as the result of his death after twenty years of active service but before retirement.
The question for decision is whether that sum was subject to an estate tax under Section 811 of the Internal Revenue Act of 1939 as amended in 1953, 26 U.S.C.A. 811, which was in effect at the time of death. For ready reference the applicable portions of the statute follow:
'The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States --
'(a) Decedent's interest. To the extent of the interest therein of the decedent at the time of his death; * * *
'(c) Transfers in contemplation of, or taking effect at, death. --
'(1) General rule. -- To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise --
'(B) under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (i) the possession or enjoyment of, or the right to the income from, the property, or (ii) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; or
'(C) intended to take effect in possession or enjoyment at or after his death.
'(3) Transfers taking effect at death transfers after October 7, 1949. An interest in property transferred by the decedent after October 7, 1949, shall be included in his gross estate under paragraph (1)(C) of this subsection (whether or not the decedent retained any right or interest in the property transferred) if and only if --
'(A) possession or enjoyment of the property can, through ownership of such interest, be obtained only by surviving the decedent; or
'(B) under alternative contingencies provided by the terms of the transfer, possession or enjoyment of the property can, through ownership of such interest, be obtained only by surviving the earlier to occur of (i) the decedent's death or (ii) some other event; and ...