it between the agent and the insured and that the prescribed procedure would have been followed.
We concluded, therefore, that the insured did retain the powers set forth above. Plaintiffs rely on the case of United States v. Burgo, 3 Cir., 1949, 175 F.2d 196, and the case of National Metropolitan Bank of Washington v. United States, 1950, 87 F.Supp. 773, 115 Ct.Cl. 396, to support their contention that the insured retained no incidents of ownership. Although these cases contain language which tends to support plaintiff's contention, they do not do so, in substance, and they are distinguishable from this case.
The question of whether the insured has retained any incidents of ownership is one of fact. Both of the cases cited by plaintiffs recognize this proposition. In National Metropolitan Bank of Washington v. United States, supra, the court stated that from the evidence there could be no doubt that both the insured and the insured's son intended the policy to be the son's and his alone. This was a determination of fact. In United States v. Burgo, supra, the Court of Appeals held merely that the district court's finding of fact that the insurance policies were the sole and exclusive property of the beneficiary rather than the insured was not clearly erroneous under the evidence.
Although the trial courts in the two cases cited by plaintiffs arrived at a determination of fact that the insured was not the owner of the policy, it is obvious that these findings are not binding here since we are dealing primarily with a question of fact as distinguished from one of law. Certainly, neither of these cases stands for the legal proposition that possession and payment of premiums are conclusive of ownership as plaintiffs argue. In each of these cases, there was evidence in addition to possession and payment of premiums which supported the finding of ownership in one other than the insured. In the National Metropolitan Bank case, supra, the beneficiary caused the policies to be taken out and there were statements by the insured to a disinterested third party to the effect that the policies belonged to the son, and there was further evidence to the effect that when the policies were delivered to the insured for safekeeping during the period of the beneficiary's Army service, the insured placed them in an envelope in her safe-deposit box and wrote the beneficiary's name thereon. No such facts were shown to exist in the case before us. Likewise, in the Burgo case, there was evidence that the application for the insurance was made jointly by the insured and the beneficiary. It is clear that the evidence relating to ownership in one other than the insured in the cases cited by plaintiffs was much stronger than that in the case before us. In any event, we concluded, as a matter of fact, that the insured did retain the powers set forth heretofore.
Whether these powers constitute incidents of ownership under Section 811(g)(2) is the remaining question. While the statute does not define 'incidents of ownership', the committee reports
, after stating that there 'is no specific enumeration of incidents of ownership' for the reason that 'it is impossible to include an exhaustive list', proceed to itemize the following examples: 'the right of the insured or his estate to the economic benefits of the insurance, the power to change the beneficiary, the power to surrender or cancel the policy, the power to assign it, the power to revoke an assignment, the power to pledge the policy for a loan, or the power to obtain from the insurer a loan against the surrender value of the policy.' (Emphasis added.) These committee reports, in listing examples of incidents of ownership, adopted practically verbatim the language of the Treasury Regulations promulgated under existing and prior sections of the code. The latest regulations are Treasury Regulations 105, Section 81.27, as amended byT.D. 5239, 1943 C.B. 1092, and 'incidents of ownership' are there defined as including 'the right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy * * *'. (Emphasis added.)
We conclude that Congress intended that the term 'incidents of ownership' include the powers which we have here found to have been retained by the insured. We must, therefore, enter judgment for the defendant since under Section 811(g)(2), the policy was includable in the gross estate of the decedent insured.
Plaintiffs, in their brief, ask us to allow a refund for the overpayment of estate taxes by reason of an additional deduction from the gross estate for reasonable attorney's fees and expenses incurred in maintaining this litigation. It is clear that an estate is normally entitled to such a deduction. Cleveland v. Higgins, 2d Cir., 1945, 148 F.2d 722; Barclay v. U.S., D.C.W.D. Pa. 1947, 73 F.Supp. 816. See 1 Paul's Federal Estate and Gift Taxation, Section 11.16, and the cases cited thereunder. However, aside from the fact that there is no allegation in the complaint relating to this matter, there is no evidence from which we can determine the attorney's fees or the expenses incurred in connection with this litigation. We cannot consider the plaintiffs' request under the present state of the record.