estate tax deduction under sec. 2055, I.R.C. 1954, as Thomas B. Lemann and Raymond J. Brandt, for the petitioners. Linda K. West, for the respondent. SWIFT, Judge: This matter is before the Court on petitioners' motions for summary judgment and for partial summary judgment filed under Rule 121.1 Respondent objects to petitioners' motion for summary judgment on the merits of the issue raised therein, and respondent objects to petitioners' motion for partial summary judgment on the grounds that the issue raised therein is not ripe for summary judgment. In a statutory notice of deficiency dated December 4, 1984, respondent determined a deficiency in the amount of $9,244,917 in the Federal estate tax liability of the Estate of Edith R. Stern. In a statutory notice of transferee liability dated December 4, 1984, respondent determined that petitioner Longue Vue Foundation was liable as a transferee for the full $9,244,917 Federal estate tax deficiency determined against the Estate of Edith R. Stern. Petitioners' motion for summary judgment raises the following issue: Whether a charitable estate tax deduction is allowable under section 2055 for a testamentary bequest to charity where the charitable bequest is voidable by the exercise of a forced heir's legitime2 interest under Louisiana law. Petitioners' motion for partial summary judgment raises an issue concerning the retroactivity of a particular Louisiana statute. In light of our decision on petitioners' motion for summary judgment, it is not necessary to address petitioners' motion for partial summary judgment and that motion will be denied as moot. 'All Rule references are to the Tax Court Rules of Practice and Procedure, and, unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 as in effect as of the date of decedent's death. 2. Legitime" has been defined as follows: "In the civil law, that portion of a parent's estate of which he cannot disinherit his children without a legal cause. That interest in a succession of which forced heirs may not be deprived. * [Black's Law Dictionary 811 (5th ed. 1979).]" FINDINGS OF FACT Many of the facts have been stipulated and are found accordingly. Decedent Edith R. Stern died on September 11, 1980. On the date of death, she was a resident of Louisiana. Decedent was the mother of three children: Edgar B. Stern, Jr. (the executor of decedent's estate and one of the petitioners in this case), Philip Stern, and Audrey Stern. Audrey Stern died prior to decedent's death but was survived by children. During her lifetime, decedent made large gifts to her children. The parties have agreed on the value of the inter vivos gifts made to decedent's children as of the date of the various gifts and as of the date of decedent's death, as follows: Also during her lifetime, decedent, whose father was Julius Rosenwald (one of the founders of Sears, Roebuck & Co.), expressed her desire to leave her large home and garden in New Orleans to charity for use as a public museum. On October 4, 1980, decedent's will was probated. Under the terms of the will, decedent devised her home and garden to Longue Vue Foundation, a charitable organization. Decedent also bequeathed $5 million in cash to Longue Vue Foundation as an endowment to maintain the home and garden. At the time of decedent's death, the approximate total value of the devise and bequest to Longue Vue Foundation was $12,437,257. The residue of decedent's estate passed by will to her two surviving children, Edgar and Philip Stern, and to a Thomas B. Hess. The record does not disclose the identity of Thomas B. Hess. Other than the residue of her estate, decedent made no specific bequests to her children or grandchildren in her will. Under Louisiana law, decedent's two surviving children and the children of Audrey Stern were considered forced heirs. Upon her death, decedent's two children and the children of Audrey Stern therefore were entitled to twothirds of the estate.3 On May 30, 1981, within 9 months of decedent's death, Edgar B. Stern, Jr., executed a disclaimer of his right to his legitime interest in decedent's estate, as well as to his share of the residue of decedent's estate. The effect of Edgar Stern's disclaimer was to increase the size of the legitime interest to which the remaining forced heirs were entitled. La. Civ. Code Ann. art. 1498 (West 1987). The Federal estate tax return for decedent's estate was filed on December 15, 1981. The value of decedent's estate as reported on the return was $14,466,067. The $12,437,257 devise and bequest to Longue Vue Foundation was claimed as a charitable deduction under section 2055. In 1983, three years after decedent's death, the remaining forced heirs (namely, Philip Stern and the children of Audrey Stern) waived their rights to claim their legitime interests in decedent's estate. The waivers, dated September 30, 1983, were included in the joint petition that was filed by the estate, by Philip Stern, and by the children of Audrey Stern in the Louisiana State Civil District Court for the Parish of Orleans to permit the Longue Vue Foundation to take possession of decedent's home and garden, and the $5 million cash bequest. The judgment authorizing Longue Vue Foundation to take possession of the property was dated September 30, 1983. In calculating the amount of the forced heir's legitime interests under Louisiana law, respondent determined that the total cumulative value of decedent's estate was $93,498,593. This figure included inter vivos gifts made by decedent and the value of the property includable in decedent's estate on the date of death. Respondent calculated the total cumulative value of the estate as follows: Estate at death (per return) Plus inter vivos gifts... Less amounts owed by the estate. ... Value $14,466,067 79,435,209 (402,683) 93,498,593 As described more fully below, under Louisiana law, forced heirs are legal heirs of the testator and have the right, if they so elect, to claim as their legitime interest a specified portion of the testator's property. Testamentary dispositions that would deprive forced heirs of their legitime interest are voidable but are not void. La. Civ. Code Ann. arts. 1493, 1495, and 1502 (West 1987), and the provisions thereof in effect in 1980. Respondent further calculated that the legitime interests of the forced heirs was two-thirds of the total estate, or $62,332,394. The portion of decedent's estate that respondent determined was not subject to the legitime interests of the forced heirs was the remaining one-third of the value of the estate, or $31,166,199. Because the forced heirs received $43,814,025 in gifts from decedent (based on the date-of-death values therefor), respondent determined that the forced heirs would be entitled to claim an additional $18,518,369 from the estate.1 Respondent, therefore, determined that no deduction was allowable under section 2055 for the charitable bequest to Longue Vue Foundation because the bequest was voidable through the exercise of the forced heirs' legitime interests. Petitioner concedes that if we disallow the charitable deduction to decedent's estate, petitioner Longue Vue Foundation will be liable as a transferee under section 6901(a) for the deficiency in estate taxes due from the estate. OPINION A decision on a motion for summary judgment may be rendered if there is no genuine issue as to any material fact. Rule 121(b). Either party may move for summary judgment in his favor on all or any part of the legal issues in controversy. Rule 121(a). Respondent has not alleged any specific facts that would necessitate a trial on the issue raised in petitioners' motion for summary judgment. See Gauntt v. Commissioner, 82 T.C. 96, 101 (1984). Section 2055 allows a Federal estate tax deduction for charitable devises and bequests to qualified donee organizations. Where a charitable devise or bequest is contingent upon the happening of a precedent event or condition, or upon the happening of a subsequent event or condition, a charitable deduction will not be allowed unless the possibility of the occurrence of the event or condition is so remote as to be negligible. Sec. 20.2055-2(b)(1), Estate Tax Regs.5 *$62,332,394 minus $43,814,025 equals $18,518,369. 5Sec. 20.2055-2(b)(1), Estate Tax Regs., provides as follows: Respondent argues that the possibility that decedent's forced heirs would exercise their legitime interests was not so remote as to be negligible. Respondent also argues that in order for the charitable devise and bequest to be deductible, the forced heirs would have had to file disclaimers of their legitime interests as provided under section 2518. Petitioners argue that the cases that have considered the effect on charitable deductions of State statutes that protect forced heirs have allowed charitable estate tax deductions where the charitable bequest was explicit in the will, where under State law, the bequest to charity was merely voidable, and where the charitable donee actually received the full amount of the bequest with respect to which the charitable deduction was claimed. Petitioners also argue that there is no factual matter in dispute relevant to this issue and that this issue can be decided as a matter of law. For the reasons set forth below, we agree with petitioners. Under Louisiana law, a testamentary disposition that impinges on a forced heir's legitime interest is not void. It is merely voidable. Article 1502 of the Louisiana Civil Code Annotated (West 1987) provides as follows: Art. 1502. Reduction of excessive donations Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum. The testamentary transfer is effective immediately upon death of the testator, and the testamentary donee lawfully holds ownership and possession of his interest even if the (b) Transfers subject to a condition or a power. (1) If, as of the date of a decedent's death, a transfer for charitable purposes is dependent upon the performance of some act or the happening of a precedent event in order that it might become effective, no deduction is allowable unless the possibility that the charitable transfer will not become effective is so remote as to be negligible. If an estate or interest has passed to, or is vested in, charity at the time of a decedent's death and the estate or interest would be defeated by the subsequent performance of some act or the happening of some event, the possibility of occurrence of which appeared at the time of the decedent's death to be so remote as to be negligible, the deduction is allowable. If the legatee, devisee, donee, or trustee is empowered to divert the property or fund, in whole or in part, to a use or purpose which would have rendered it, to the extent that it is subject to such power, not deductible had it been directly so bequeathed, devised, or given by the decedent, the deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of the power. |