§ 220 Deposit to Protect Margin. ceived from said companies certificates for such deposits, respectively, which he held at his home without this State at the time of his death, held taxable. Matter of Hewitt, 181 N. Y. Mem. 45, affg. 98 App. Div. 624, 90 N. Y. S. 1100. 75. Deposit with Bankers to Protect a Margin. A deposit by a nonresident with a firm of New York brokers as a margin with which to protect the nonresident's interests in the purchase of stock, is taxable upon the death of the nonresident, where the money has remained on deposit after the stock transaction, and was used by the bankers in their business. Matter of Daly, 100 App. Div. 373, 182 N. Y. 524, no opinion. 76. Profits When Taxable. Profits permitted to remain on deposit with the firm are to be included in the taxable assets. Matter of Probst, 40 Misc. Rep. 431, 82 N. Y. S. 396. 77. Leasehold Interests in Land. The term "personal property " is now used in the statutes to designate chattels, and every species of property which is not real estate, and, therefore, a leasehold interest in land, being a chattel, is subject to taxation as personal property under the Transfer Tax Law. Matter of Althause, 63 App. Div. 252–256, 71 N. Y. S. 445; affd., 168 N. Y. 670. 78. Money Loaned Is Not an Advancement. Money loaned by testator to his children and which he directed should be included in his estate and divided equally among all his children, the loans to be deducted from the share of the children to whom the same were made, are not advancements but legacies Savings Bank Deposits. § 220 subject to tax. Matter of Bartlett, 4 Misc. Rep. 380, 25 N. Y. S. 990. 79. Fund Held for Grantor's Life Reserving Power to Dispose of Same by Will. A fund held by a trust company under a revocable trust to pay the income to the testator for life and at his death the principal to be turned over to the appointees named in his will, or to his next of kin, if such appointment is not made, is taxable as the property passes under the will of the grantor. Matter of Ogsbury, 7 App. Div. 71, 39 N. Y. S. 978. 80. Savings Bank Deposits. Prior to the amendment of section 227 of the Transfer Tax Law (chap. 368, Laws 1905) it would seem that little, if any, attention had been given to the taxability of savings bank deposits standing in the name of a deceased depositor "in trust for another " or " jointly with another person"-" either or the survivor to draw"-" payable to survivor," etc. The practice is, however, to consider such deposits as the property of the deceased depositor, transferred at his death to the cestui que trust, or the survivor, as a gift intended to take effect in possession or enjoyment at or after death and liable to taxation under subdivision 4 of section 220 of the Transfer Tax Law, unless the facts and circumstances in connection with such deposit establishes a gift inter vivos. There are a number of cases where the courts have passed upon the legal rights of the persons interested in the property of the deceased depositor, but the taxation of deposits of this character under the Transfer Tax Law has not been generally settled by the courts § 220 Id.; Gift Cannot Be Inferred. at this time, and the taxability thereof must necessarily be determined largely by the facts and circumstances surrounding each case. It must be conceded, however, that the liability of a deposit in trust to an inheritance tax on the death of the depositor does not depend upon whether the trust is a tentative, or an irrevocable one. If the acts of the depositor do not establish a gift inter vivos then the transfer to the cestui que trust only takes effect in possession or enjoyment at or after the death of the depositor, and the funds would be appraised as a part of the deceased depositor's estate and the transfer thereof equally liable to taxation with the rest of his property. It seems clear that the unequivocal act or declaration of the depositor," such as delivery of the pass-book or notice to the beneficiary," referred to in the Matter of Totten, 179 N. Y. 112, can only be intended as evidence to establish the nature of the trust, and the rights of the interested parties thereto upon the death of the depositor. 81. Id. - Gift Cannot Be Inferred from the Form of the De posit Alone. "We can In Beaver v. Beaver, 117 N. Y. 430, Judge Andrews says: not close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons; reasons connected with taxation; rules of the bank limiting the amount which any one individual may keep on deposit; the desire to obtain high rates of interest where there is a discrimination based on the amount of deposits, and the desire, on the part of many persons, to veil or conceal from others knowledge of their pecuniary condition. In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established, independently of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor." In addition to the foregoing it is also well known that in most instances deposits in trust for another, or jointly with another, payable to either, or the survivor of either, are made for the sole purpose of avoiding, in the event of the death of the depositor, the expense of obtaining letters in the Surrogate's Court, and in almost every case the cestui que trust or the joint owner is some relative or friend whom the depositor would have named in his will as his legatee if he had not been advised that his desire in this respect would be as effective by making a deposit of his money in one of the several ways indicated. Deposits of this kind are advocated by the banks and naturally appeal to the depositor, because he can retain the same right to, and control over the funds as though the deposit was in his individual name. It is generally the acts of the depositor subsequent to making the deposit which are to be considered in determining whether the deposit was a gift either inter vivos or causa mortis, or intended only to take effect at or after his death. 82. Id. In Trust, etc. A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust, during the lifetime of the depositor. It is a tentative trust, merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass-book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance $ 220 Id.; Widow of Beneficiary. on hand at the death of the depositor. Matter of Totten, 179 N. Y. 112-126, revg. same case, 89 App. Div. 368, 85 N. Y. S. 928. In the Matter of Sheedy, N. Y. Law Journal, May 25, 1905, Surrogate Thomas, upon an accounting in this estate, held that, upon all the facts shown, the sum of $3,000 deposited by the decedent in the Bowery Savings Bank to the credit of "Patrick Sheedy in trust for Joanna Sheedy," was a part of the decedent's estate. That the rights of the beneficiary are at most conditional and defeasible, and do not become effectual or complete until, on the death of the depositor, his power to revoke the trust is gone (citing Matter of Totten, 179 N. Y. 112), and if the beneficiary designated is not then alive the initiated trust is altogether at an end, and the fund passes to the legal representatives of the depositor. It would seem that the rights of the depositor and the beneficiary, in deposits of this kind must be one of intent on the part of the depositor and under the Tot ten Case (supra), such deposit shows, prima facie, an intention that the beneficiary shall take, not at once, but only upon the depositor's death. 83. Id. When Widow of Beneficiary Not Entitled to Deposit. While the Totten case established the rule that where the depositor dies before the beneficiary the latter will take, the opinion does not, however, state the rights of the interested parties where the depositor survives the beneficiary. In the Matter of United States Trust Co., 117 App. Div. 178, affd., 189 N. Y. 500, it was held that where one deposits money in his own name in a savings bank in trust for his son, and the son dies before the depositor, the tentative trust was never consummated |