Johnson v. Wisconsin Department of Revenue 113 Wis. 2d 126, 334 N.W.2d 574

DYKMAN, J.

William A. Johnson, Personal Representative for the estate of Veronica F. Johnson, appeals from a summary judgment in favor of the Wisconsin Department of Revenue, Bureau of Fiduciary, Inheritance and Gift Tax. Johnson contends that the trial court erred because material issues of fact existed. We conclude that there are no material issues of fact and therefore affirm the trial court.

Veronica F. Johnson died on November 3, 1977. At the time of her death, she had an interest as a joint tenant in several parcels of real property. In the trial court, Johnson stipulated to the correctness of the Department’s Certificate Determining Inheritance Tax as related to four parcels owned jointly by William A. Johnson and Veronica F. Johnson, husband and wife. The tax at issue concerns four other properties held jointly by Veronica Johnson, William Johnson and Arliss Hill.1

*128The trial court’s reasons for granting summary judgment are not part of the record. Johnson conceded in the trial court that Veronica Johnson had legal title to the properties in question. The trial court determined that no material issues of fact existed and the Department was entitled to summary judgment on its application of sec. 72.12(6), Stats. (1975),2 to real property in Veronica Johnson’s estate.3

*129The standard for granting a motion for summary judgment has been reiterated numerous times. In Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 762, 300 N.W.2d 63, 69-70 (1981), the supreme court said:

“The purpose of summary judgment is to obviate the need for a trial where there is no genuine issue as to any material facts. It is a judgment rendered on the merits without a trial. The summary judgment procedure does not function as a substitute for a trial of any genuine issue of material fact, but permits a decision based on affidavits, records and for [sic] depositions. The party moving for summary judgment must demonstrate that a trial is not necessary and establish a record sufficient to demonstrate to the satisfaction of the court that there is no triable issue of material fact on any issue presented. Any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. If the trial court has determined the movant has proved to the court’s satisfaction that there is no genuine issue of material fact as a matter of law, then the trial court should enter judgment.” [Citations omitted.]

In reviewing the trial court’s order granting summary judgment, we independently review the record to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500, 502-03 (1980).

The procedure used to determine whether any genuine issue of material fact exists was recently stated in *130Schroeder v. Schoessow, 103 Wis. 2d 380, 385, 309 N.W.2d 10, 12-13 (Ct. App. 1981):

The first step is to examine the pleadings to determine whether a claim has been stated and whether a genuine issue of fact is presented. If the complaint states a claim and the pleadings show the existence of factual issues, the second step is to examine the moving party’s affidavits and other proof to determine whether the party has made a prima facie case for summary judgment. To make a prima facie case, a moving defendant must show a defense which would defeat the plaintiff. If the moving party has made a prima facie case, the third step is to examine the affidavits and other proof of the opposing party to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.

Johnson argues that the four properties were actually owned and operated by a partnership between Arliss Hill and himself. Veronica Johnson was therefore not a partner and did not have any ownership interest in the partnership.

Record title to the properties was held by Wm. A. Johnson and Veronica F. Johnson, his wife, an undivided one-half interest, and Arliss J. Hill, an undivided one-half interest.4 Johnson contends that even though Veronica *131Johnson had record title to the properties, the properties belonged to the partnership and should not have been included in Veronica Johnson’s estate for tax purposes. Johnson argues that because partnership proceeds paid for the properties, they must be presumed to be partnership property, citing In re Estate of Schaefer, 72 Wis. 2d 600, 611, 241 N.W.2d 607, 612 (1976). He concludes that the properties are therefore not taxable in Veronica Johnson’s estate.

If the Department is correct in its interpretation of sec. 72.12(6), Stats., contribution or lack of contribution to the purchase of the properties by the decedent is irrelevant. The only relevant issue of fact is record title which is undisputed.5 Under the Department’s interpretation, only a question of law for the court remains. “Questions of law such as statutory construction are reviewable ab initio by this court and are properly subject to judicial substitution of judgment.” Revenue Dept. v. Milwaukee Brewers, 111 Wis. 2d 571, 577, 381 N.W.2d 383, 386 (1983).

Wisconsin inheritance law concerning jointly owned property has undergone significant change over the years. Section 72.01(6), Stats. (1945), provided that on the death of one joint tenant, passage of ownership or possession and enjoyment to the survivor (s) was deemed a taxable transfer of that fraction of the property owned by the decedent.6 The supreme court, in construing that *132statute, held that “[t]he terms of the statute involved here leave no room for questioning from where the interest of each of the parties came. . . . [A] 11 that is needed to set the statute in motion is to have property in the joint names of the parties.” Estate of Hounsell, 252 Wis. 138, 142-43, 31 N.W.2d 203, 205-06 (1948). The only exception was when the joint title came into being under a transaction clearly indicating a trust relation or the existence of an agency. Id. at 143, 31 N.W.2d at 206.7 Thus, under sec. 72.01, contribution to the acquisition of the property was irrelevant. Passage of legal title to the survivor (s) was taxable on the death of one joint tenant.

By ch. 310, Laws of 1971, effective for deaths on or after May 14, 1972, sec. 72.12(6), Stats. (1971), was created.8 That section replaced the prior law taxing joint *133property on the basis of fractional shares. The new general rule was that the full clear market value of the property was included in the gross estate of the decedent. An exception under sec. 72.12(6) (b) allowed an exemption to the survivor (s) for that portion of the property acquired through contribution or prior ownership by the survivor (s). The survivor (s) had the burden of proof to show that all or part of the property fell within this exception and the entire value of the property was included in the decedent’s estate for inheritance tax purposes if the survivor (s) failed to meet this burden. Establishing Contribution in Joint Tenancies, 48 Wis. Bar Bull. 67 (Dec. 1975).

That section was repealed and recreated by ch. 222, Laws of 1975, which was in effect at the time of Veronica Johnson’s death. It applied to all joint property when the decedent dies after July 1, 1976. “The fractional interest of the property which will be taxed is determined by dividing the property’s clear market value by the number of joint tenants, including the decedent. . . . Contribution would no longer be a factor.” Boykoff, The Taxation of Joint Tenancy Property Enacted by Chapter 222, Laws of 1975, 49 Wis. Bar Bull. 81, 33 (Oct. 1976).

When the plain meaning of a statute is apparent, we need not resort to either construction or case law. Lemon v. Federal Ins. Co., 111 Wis. 2d 563, 568, 331 N.W.2d 379, 381 (1983). Section 72.12(6), Stats., states *134that the passage of the right of ownership or possession and enjoyment of the property to the survivor (s) on the death of one joint tenant is a transfer taxable for inheritance tax purposes. Excluded from taxation is that fractional interest of the survivors as determined by dividing the property’s clear market value by the number of joint tenants, including the decedent. This language is unambiguous and very similar to the pre-1972 law. Unlike the 1972-1976 law, the 1975 statute does not indicate that contribution is a factor to be considered in determining inheritance tax owed by the decedent. The only questions to be determined are whether property is jointly held and how many joint tenants hold title.9 The trial court was correct in granting summary judgment to the Department because contribution is not a relevant factual issue.

Johnson argues that the property is exempted from taxation under sec. 72.12(6) (b)2, Stats., because the transfer from the corporation to the j oint tenants was an incomplete transfer not subject to the gift tax. Under sec. 72.12(6) (b)l, only property that is a completed transfer is taxable in the manner described above. Section 72.12 (6) (b)2 applies to money deposits and incomplete transfers. It takes into account contribution by each of the joint tenants.

Transfer of real property into joint tenancy is a complete transfer which requires the signature of all joint tenants to transfer the entire property. Boykoff, supra, at 33. In addition, sec. 72.76(7), Stats. (1965), in effect *135when the properties were transferred, states: “A gift shall be complete for tax purposes when the donor has divested himself of all beneficial interest in the property transferred and has no power to revest any such interest in himself or his estate.”

Arliss Hill’s affidavit states that each of the properties in question was originally owned by a corporation named either Wm. A. Johnson Co., Inc., or Wm. A. Johnson Homes, Inc. The corporation conveyed the property to William Johnson, Veronica Johnson and Arliss Hill. The corporation was dissolved on August 8, 1977. A completed transfer must have occurred because the corporation divested itself of all beneficial interest and could not have retained any interest because it was dissolved before Veronica Johnson’s death. Since the transfer of the real property in question was a completed transfer and not “money which is invested or deposited in a financial organization” under sec. 72.12(6) (b)2, Stats., it was only entitled to the exclusion contained in sec. 72.12(6) (b) 1 which was already given to the estate.

The parties concede title to the property in question was jointly held by Veronica F. Johnson, William A. Johnson and Arliss J. Hill. Upon Veronica Johnson’s death, the property was transferred to William A. Johnson and Arliss J. Hill. No issue of material fact exists. The transfer is taxable under sec. 72.12(6), Stats. The trial court properly granted summary judgment to the Department.

By the Court. — Judgment affirmed.

GARTZKE, P.J.

(dissenting). Section 72.12, Stats., provides in relevant part:

A tax is imposed upon any transfer to any distributee in the following cases:

*136(6) (a) When property is held in the names of 2 or more persons with the right of survivorship but not as tenants in common. Upon the death of one joint tenant, the right of the surviving joint tenant or tenants to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under this subchapter at the property’s clear market value.

The question is whether the decedent, an apparent joint tenant, had acquired an interest in the real estate. If she in fact acquired no such interest, then no transfer occurred at her death and no tax is imposed.

The issue arises on a petition, pursuant to sec. 72.30 (4), Stats., for a redetermination of the inheritance tax. Section 72.30(3) (b) provides, “Where the department and any interested person are unable to agree on any issue necessary for the determination of tax under this sub-chapter, either may petition the circuit court to decide the issue.” Accordingly, the issue whether the decedent, Veronica Johnson, had acquired any interest in the properties was properly before the court on the petition for redetermination of inheritance tax.

The only evidence submitted by the state in support of its motion for summary judgment was the estate inventory submitted by William Johnson. That inventory included legal descriptions of the properties in question, including statements that, “ [r] ecord title is in Wm. A. Johnson and Veronica F. Johnson, his wife, an undivided Vá interest and Arliss J. Hill an undivided y% interest.”

In opposition to the state’s motion, William Johnson submitted an affidavit by Arliss J. Hill. In substance, Hill asserts that the properties belong to a partnership in which Hill and William Johnson are the only partners and that the grantor, William A. Johnson Co., Inc., on the deeds by which Veronica Johnson was named a grantee never intended to convey an interest to her. Intention is a question of fact which must be resolved by the trial court. *137Estate of Kohn, 43 Wis. 2d 520, 524, 168 N.W.2d 812, 814 (1969).

Whether decedent contributed to the acquisition of the properties is not dispositive. If the property was partnership property, William Johnson could have assigned his wife a joint interest as a gift. Estate of Schreiber, 68 Wis. 2d 135, 145, 227 N.W.2d 917, 922 (1975). How the tax law treats the question of contribution is not, however, dispositive of the question whether the decedent acquired an interest.

I am disturbed by the majority’s conclusion that the tax law forbids the court from looking behind apparent record title to determine the parties’ actual property interests. In People v. Fester, 356 P.2d 130, 132 (Colo. 1960), the Colorado Supreme Court rejected the tax commissioner’s argument that statutory language similar to that of sec. 72.12(6), Stats., created a conclusive or irrebutable presumption that title apparently passing to a joint tenant by survivorship was a taxable transfer. The Fester court said:

Such conclusion would not only be inequitable but would ignore the fact that property may be held in trust, and would raise serious doubts of the constitutional validity of that section of the act. It would result in imposing a tax upon a person who in fact received nothing to tax and would amount to taking his property without due process of law.

356 P.2d at 132.

Because William Johnson demonstrated that an issue of material fact exists, summary judgment was in appropriate. Sec. 802.08(2), Stats. The trial court therefore erred when it granted summary judgment to the department.