The opinion of the court was delivered by: SHERIDAN
SHERIDAN, District Judge.
In this action to recover estate taxes alleged to have been erroneously and illegally collected, the issue is whether the value of the remainder interest to charity in the residuary trust created by the will of Margaret Duer Judge was deductible under Section 2055 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 2055. Specifically, the questions presented are: (1) whether the will provides a sufficiently definite standard limiting the extent of possible invasion for the benefit of non-charitable interests so that the value of the charitable remainder was "presently ascertainable" at the time of the testator's death; and if so, (2) whether the possibility that the charity would not take was so remote, at least as to a calculable portion of the corpus remainder, as to be negligible. The taxpayer is entitled to the charitable deduction only if both questions can be answered affirmatively. Ithaca Trust Co. v. United States, 1929, 279 U.S. 151, 73 L. Ed. 647, 49 S. Ct. 291; Merchants National Bank v. Commissioner, 1943, 320 U.S. 256, 88 L. Ed. 35, 64 S. Ct. 108; Henslee v. Union Planters Bank, 1949, 335 U.S. 595, 93 L. Ed. 259, 69 S. Ct. 290; Zentmayer's Estate v. Commissioner, 3 Cir. 1964, 336 F.2d 488; Berry v. Kuhl, 7 Cir. 1949, 174 F.2d 565; Mercantile-Safe Deposit and Trust Co. v. United States, D. Md. 1966, 252 F. Supp. 191; Kline v. United States, N.D. W. Va. 1962, 202 F. Supp. 849.
Margaret Duer Judge died testate on December 9, 1964, and the plaintiffs are the duly qualified executors of her estate. The estate tax return was filed in March 1966. The estate claimed a charitable deduction of $182,213.27 as the value of the charitable remainder interest of the trust created under Item XX of the will of the decedent. Upon audit, the charitable deduction was disallowed and a deficiency in estate tax of $38,759.57 was assessed and paid in March of 1969, together with interest of $7,008.58. A claim for refund in the amount of $45,768.15 was timely filed in February 1971, the refund claim was denied in November 1971, and the instant suit was subsequently filed.
This case is governed by Section 2055 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 2055, which provides that for purposes of the estate tax, the value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of all bequests, legacies and devices to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, and all testamentary transfer to trustees for such purpose, with certain provisions and limitations not relevant to this case.
Section 2055 of the 1954 Code is essentially the same as Section 812(d) of the 1939 Code, which was involved in many of the cases cited herein. Both the taxpayer and the government agree in the stipulation of facts that the named remaindermen are charitable organizations as defined in Section 2055 of the Code.
Treasury Regulations on Estate Tax (1954 Code), Section 20.2055-2, which has the effect of law,
states the requirements for a charitable deduction when a trust is created for both a charitable and a private purpose. The material provisions are as follows:
"(a) Remainders and Similar Interests. If a trust is created or property is transferred for both a charitable and a private purpose, deduction may be taken of the value of the charitable beneficial interest only insofar as that interest is presently ascertainable, and hence severable from the noncharitable interest.
"(b) Transfers Subject to a Condition or a Power. 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 would be defeated by the performance of some act or the happening of some event, the occurrence of which appeared to have been highly improbable at the time of the decedent's death, 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. . . ."
These provisions are essentially the same as Sections 81.44 and 81.46 of Treasury Regulation 105, which dealt with the 1939 Code and were involved in many of the cases cited herein.
The first question is whether the trustee's power of invasion was limited by an ascertainable standard so that the charitable bequest, as of the testatrix's death, had a presently ascertainable value, or put another way, whether Item XX of decedent's will provides a sufficiently definite standard limiting the extent of possible invasion for the benefit of noncharitable interests. Under Item XX, the first power to invade corpus given the trustee is the one which directs it to invade the corpus to the extent the trust income is insufficient to pay the life tenant $500 per month. Both parties agree that this constitutes an ascertainable standard and the courts have so held. Bowers v. South Carolina National Bank of Greenville, 4 Cir. 1955, 228 F.2d 4; Estate of Helen Stow Duker, 1952, 18 T.C. 887. Item XX further provides that the trustee shall pay from the corpus all medical, hospital and nursing bills incurred by the life tenant, Mildred M. Judge. There is no doubt that this also constitutes an ascertainable standard. The Internal Revenue Service has ruled that a power of invasion to pay hospital and medical expenses is an ascertainable standard. Rev. Rul. 54-285, 1954-2 Cum. Bull. 302; Rev. Rul. 70-450, 1970-2 Cum. Bull. 195. And the courts have consistently held that the power to invade for such purposes constitutes a sufficiently definite standard "fixed in fact and capable of being stated in definite terms of money." Ithaca Trust Co. v. United States, 1929, 279 U.S. 151, 73 L. Ed. 647, 49 S. Ct. 291. For example, the courts have held that the standard is ascertainable where the will permits invasion for the beneficiary's "comfort and welfare," Blodget v. Delaney, 1 Cir. 1953, 201 F.2d 589; for support, care, and benefit of income beneficiary during incapacitation due to illness, age or other cause, Salisbury v. United States, 2 Cir. 1967, 377 F.2d 700; for "accident, sickness or other emergency or unusual conditions of any kind," Nardi v. United States, 7 Cir. 1967, 385 F.2d 343; for "the upkeep of the home place and all necessary medical and hospital expenses in the case of the illness of either or both of the testator's sisters," Bowers v. South Carolina National Bank of Greenville, 4 Cir. 1955, 228 F.2d 4; to pay the life tenant a sum not exceeding $5,000 in any one year if "by reason of accident, illness or other cause" she "requires funds for the treatment, support or maintenance," Berry v. Kuhl, 7 Cir. 1949, 174 F.2d 565; for "sickness, accident, want or other emergency," Commissioner v. Wells Fargo Bank and Union Trust Co., 9 Cir. 1944, 145 F.2d 130; if life beneficiary's income from all sources was insufficient to provide her with the best medical, hospital or nursing care or treatment in case of sickness, trustee should apply such part of principal as in his absolute discretion he should deem necessary, Mercantile-Safe Deposit and Trust Co. v. United States, D. Md. 1966, 252 F. Supp. 191; for "emergency, illness or necessity," Estate of Oliver Lee, 1957, 28 T.C. 1259.
However, the mere fact that Item XX fixes measurable limits on the power of invasion is not sufficient to justify the claimed deduction. Having concluded that the authorized invasion of corpus is limited by a presently ascertainable standard, ". . . it becomes necessary to examine the remoteness of invasion, or the extent of possible invasion, in terms of the standard, to determine the likelihood that the charity will take and the value of what it will receive." Newton Trust Co. v. Commissioner, 160 F.2d 175, 178-79; (1 Cir. 1947) see Lincoln Rochester Trust Co. v. Commissioner, 181 F.2d 424, 427, [50-1 USTC P10,763] (2 Cir. 1950); Bowers v. South Carolina National Bank of Greenville, supra. It must appear as of the date of testator's death that the possibility of invasion of the charitable bequest, with its consequent diversion of corpus from the charitable donee, is so remote as to be negligible. Newton Trust Co. v. Commissioner, supra; Berry v. Kuhl, supra; Estate of Russell Harrison Varian, 1966, 47 T.C. 34, aff'd, 9 Cir. 1968, 396 F.2d 753, cert. denied, 1968, 393 U.S. 962, 89 S. Ct. 402, 21 L. Ed. 2d 376; Estate of Abraham L. Buckwalter, 1966, 46 T.C. 805.
The "possibility so remote as to be negligible" test has been held to mean that the charitable deduction is allowable only if the chance that the charitable transfer will not become effective is the kind of chance which persons generally would disregard as so highly improbable that it might be ignored with reasonable safety in undertaking a serious business transaction. Hamilton National Bank of Chattanooga v. United States, E.D. Tenn. 1965, 236 F. Supp. 1005, aff'd, 6 Cir. 1966, 367 F.2d 554. It is a possibility which every dictate of reason and common sense would justify an intelligent person in ...