The opinion of the court was delivered by: LEVET
This is a motion by plaintiff for summary judgment. The amended complaint contains two causes of action. There are no disputes of fact. In the first cause of action plaintiff seeks to recover the sum of $ 2,617.81 which she, as executrix of her mother's estate, paid as part of the estate tax. The estate tax was paid under protest on the ground that a portion of the estate upon which the tax was paid was tax-exempt by reason of an indebtedness owed to her by the estate. There is no question of the existence or the legitimacy of the indebtedness as of the date of the death of plaintiff's mother. The obligations were represented by notes; the monies were loaned by the plaintiff individually to the decedent and were used to purchase stock for the decedent.
The government's defense is wholly statutory. It is the application of these statutes which is involved in this motion. The government disallowed the indebtedness on the three notes as estate tax deductions on the ground that the plaintiff had failed to file a claim for the debt with the Florida Probate Court in accordance with a Florida statute, hereinafter mentioned. Florida was the place of decedent's domicile at the time of her death. Although it is not material to this motion, it appears that the failure to file the claim in the Florida Probate Court was entirely due to plaintiff's inadvertence.
Section 733.16 of the Florida Statutes, F.S.A., is as follows:
'No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission of the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and postoffice address of the claimant, and shall be sworn to by the claimant, his agent or attorney, and be filed in the office of the county judge granting letters. Any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner and within the said eight months as aforesaid.'
The pertinent portion of the United States Internal Revenue Code of 1939 is as follows:
'For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate --
'(a) Exemption. An exemption of $ 100,000;
'(b) Expenses, losses, indebtedness, and taxes. Such amounts --
'(1) for funeral expenses,
'(2) for administration expenses,
'(3) for claims against the estate, and
'(4) for unpaid mortgages upon, or any indebtedness in respect to, property where the value of decedent's interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate, as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or property taxes not accrued before his death, or any estate, succession, legacy, or inheritance taxes. * * *' 26 U.S.C.A. § 812. (Emphasis supplied.)
The plaintiff contends that he words 'are allowed' relate solely to the time of decedent's death. The government contends that the words 'are allowed' are to be construed to mean that the claim must be ultimately allowed ...