
    Charles R. Weiden and Hermann J. Weiden, as Executors of the Estate of Robert Weiden, Deceased, Petitioners, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 70763.
    Promulgated August 31, 1934.
    
      L. S. Pendleton, Esq., for the respondent.
   OPINION.

Arundell:

This proceeding involves estate taxes determined by the Commissioner in the sum of $7,319.48. The case has been submitted on the pleadings and a signed stipulation of facts. The decedent died on January 9, 1931. The question of law presented is the right to include in decedent’s gross estate the value of certain real property located in the State of New York which was owned by decedent and his wife as tenants by the entirety. The property in question was acquired between 1893 and 1908. The governing statute is section 302 (e) of the Revenue Act of 1926. It is petitioner’s contention that the Federal Government may not tax the transfer of such property where the acquisition occurred prior to the passage of the first Federal estate tax act of 1916. The constitutionality of the levy has now been definitely established. Tyler v. United States, 281 U.S. 497; Gwinn v. Commissioner, 287 U.S. 224; Third National Bank & Trust Co. v. White, 45 Fed. (2d) 911; affd., 287 U.S. 577; Luman W. Goodenough, Executor, 30 B.T.A. 69.

Petitioners contested the taxation of the same property by the taxing authorities of New York under a statute similar to the Federal estate tax act, and in a decision by the Court of Appeals of New York, rendered November 21, 1933, In re Weiden's Estate, 188 N.E. 270, the constitutionality of the state statute was sustained and the entirety property included in decedent’s estate in determining the amount of the New York State transfer tax.

Decision will be entered for the respondent'.  