The decision of the Missouri Supreme Court in the case of Estate of Osterloh v. Carpenter does not affect the waiver requirements contained in Section 145.210, M.S.R.

I~.~ ERI '1' Arl CE TAX 'IJ AIVERS: Tr.e decision of the l•ri.sJour ..1. Su- preme Co~rt in the case of Estate of Osterloh v. Carpenter does not affect the waiver requirements cor.tained in Sectio.1 l4542lu , l' . • S . R. January 10. 1962 Mr. M. E. MOrris Director of Revenue Jefferson Building Jefferson City, Missouri Dear Mr. Morris& This is in reply to your request for an opinion from t his office which reads as tollowss -we respectfully request an opinion from your office aa to whether or not it is necessary tor banks to se- cure a waiver from the Director of Revenue and the Attorner General be- tore tranaterring joint y-held bank accounts, or other jointly-held prop- erty to the survivor. liThia request ia made in rl.-~ · o£ t he recent Supreme Court decision in t he Osterloh case • • • • The requirement of securing a waiYer trom the Director of Revenue and the Attorney General is contained in Section 1~5.210, M.S.R., the pertinent parts of which read aa fol- lows (subparagraphs 2, 3 and 4)J •2. No aate deposit company, trust com- pany, corporation, bank or other institu- tion, person or persons having in possession or under control securities, deposita, or other assets belonging to or standing in t he name of a decedent who is a resident or nonresident, or belonging to or standing in the joint names ot such a decedent and one or more persons, including the shares of capital stock or other interest in a safe deposit company, trust company, corpo- ration, bank or other insti tution making a Mr. M. K. Morria deli Tery or trander herein pro Tided, ahal.l deli yer or transfer the aaae to the executor, administrator, or legal repreaentatiTe or aaid decedent or the ~YOr or aurviTora wh.n in the joint name of a decedent and one or more persona or upon their order or re- quest unleaa notice of the time and place ot such intended delivery or tranater be served upon the director ot reTenue and at- torney general at leaat ten dare prior to aaid delivery or transfer; nor shall any safe deposit company, trust company, corpo- ration, bank or other inatitution, person or persona, deliver or tranater ·any ae- curitiea, deposita, or other asseta belong- ing to or standing i n the name or decedent or be1onging to or atanding in the joint n a~~ea ot decedent and one or more persona, including the shares of capital atock of or any other interest in the sate deposit com- pany, truat company, corporation, bank or other institution making the del1very or transfer w~tbout retaining a autticient portion or amount thereof to pay .ny tax or interest which ~7 thereafter be aa- sessed on account ot the delivery or trans- fer ot such aecuritiea, depoaits, or other assets, including the ahares or capital stock or oth•r interest i n the sate deposit company, trust company, corporation bank or other institution making the delivery or transfer under the provisions ot this chapter unleaa the director of reTenue and the attorney general consent t hereto 1n writing. •J. And it shall be lawtul for the director ot revenue together with the attorney general, peraonally or by representative, to examine aaid aecuritieal deposita or aaaeta at the time ot auch de i Tery or tranater. ·~· Failure to serve such notice or failure to allow such exaaination or failure to retain a sufficient portion or amount to pay such tax or interest aa herein proyided shall render aaid sate deposit company, trust company, cor- poration, bank or other inatitution, person or -2- !~r • .M. E. Morris persons liable to the payment of the amount of the tax and interest due or thereafter to become due upon said aecurities, deposita. or other as&ets, including the charges of eapit~ stock or. or other interest in tbe saft:t deposit company, trust company, corpo- ration, bank or other institution making the delivery or trPnsfer, and in addition t hereto a penalty of one thousand dollars; and tha payment of such tax and inter~st thereon or the penalty above ~rescribed or both may be enforced in an action brought by the attorney gener.al at the relation of the director of revenua, 1n any court of competent ju~isdietion .• The recently decided case of Osterloh's Estate v. Car- pent•r• 337 s. w. 2d 942 1 held ~hat the creation of a joint tenancy is not a transfel" of property within 'the ambit of our inherit~•• tax laws relating to transfers in contem- plation of death. A prior d$cision of the ~u,souri Supreme Court in the ease. of In re Gerling's Estate. .)03 S. W. 2d 91.5 • b.eld there wa .. no transfer. of property subject to in- heritance tax upon tbe death of the joint tenant. Put in it,s simplest terms. this opinion request binges on whether the requirements QS set forth 1n Section 145·210 are premised upon the taxability of the transfers noted. If this were true, the above noted Supreme Court decisions hold- ing that neither the creation ot a jolnt tenancy nor the death ot the joint tenant are taxable transfers within the purview of our inheritance tax statutes. would effectively abrogate the requirements of this section as to the securing of waivers. A careful reading ot this statute convinces ua th1e is not ao. It 1a to be noted that Section 145 .,alO specifically 1nclud.ea jointly held property, the type of ownership here under inquiry. It is also to be noted th-.t the statute re- peatedly reters to the *delivery or transfer• of the property. It would appear,. therefore, that the legislatur., in setting forth the waiver requirements, was not concerned exclusively with the taxability of the tra~saction. !£ it were, Section 145.210 would h~ve been limited to "tranatera• of property,the only type of transaction taxable under our inheritanee tax etatutee. The legislature, as noted above, included the word •deli ••rr" whi eh mey or may not be taxable. The statutes apecitically atate that a waiver is required ~etore the -3- Mr. M. E. •1orr1e ndelivery" of Jointly held property. Therefore# the Supreme Court decision that t here ls no transf~r cannot affect the requirements as set forth in t he statute . The stat ut es themselves provide the one exception where the provisions of Section 145.210, R8Mo 1959, become inoper- ative. Subsection 2, Section 145.150, RSMo 1959, reads as follows: "The court sha l l i mmedi at ely upon the filing of t he i nventory and appraise- ment or t he est ate of a decedent, ex- amine the same, and if it is apparent, in the opinion of t he court, that the estate 1s not subj ect to t he t nx provided for in this law, ita f i ndi ng and opi nion shall be ent ered of record i n t he court and thereupon t he pro- visions of section 145.210 become inoperative as to the holders or funds or other property t hereof, and t here shall be no further proceedinta relating t ~ such tax, un1esa upon the application of i ntere sted parti es the ex1ot ence of other property or an erroneous appralaement i s shotm ." It would appear, t herefore, t hat if, after the filing of the inventory and appraisement of the estate of the decedent, it 1s t he opinion of the court tl~t these items are not taxable, then and only then do the provisions of Section 145.210 become inoperat i ve . lt 1s apparent that the provisions of Section 145 .210 are designed to put the st ate on notice as to the existence of the described property purported to bo jointly held, so that a det.ermlnat ion might be made as t o t he eorrectneas of this designat ion. CONCLUSION In conclusion, the decision of the M1ssour1 Supreme Court in the case of Osterloh's Estate v. Carpenter, supra, does not a~feet the waiver requirements ln Section 145.210. The fo?egoing opinion, which I hereby approve, was prepared by my assistant, Robert D. Kingsland. RDK: LC:BJ Ve~ Lruly yours, 'IHC»>As P . nom<it Attorney General