MATTER OF ESTATE OF McCOY

249 S.E.2d 473 (1978)

39 N.C. App. 52

In the Matter of the Estate of James Crawford McCOY, Deceased.

No. 7730SC1053.

Court of Appeals of North Carolina.

December 5, 1978.

*474 Van Winkle, Buck, Wall, Starnes, Hyde & Davis by Albert L. Sneed, Jr., Asheville, for respondents-appellants.

Siler & Philo by Robert F. Siler and Steven E. Philo, Franklin, for petitioners-appellees.

CLARK, Judge.

The appellants first contend that the Consent Judgment resolved the question of *475 whether or not the Administrator could recover funds from the Receiver to pay estate taxes assessed against the Estate. Appellants contend that, since the Administrator did not obtain the possession of or title to the corporate stock under the Consent Judgment, that the Administrator was barred from recovering any funds from the Receiver. We find no merit in appellants' contention. The Consent Judgment did not address itself to the issue of the tax liability of the parties. Therefore, the Consent Judgment does not preclude the Administrator from seeking contribution from the Receiver.

The appellants' second contention is that the payment of estate taxes is primarily a duty of the Administrator, and that the correct procedure for collecting taxes is for the Administrator to exhaust the funds in his possession, and then to recover the remainder from the assets in the hands of the distributees. See, I.R.C. §§ 2205 and 6324(a)(2); Treas.Reg. § 20-2002-1. These provisions apply only to those situations where the assets of the estate have already been distributed to the heirs. See, First National Bank v. Wells, 267 N.C. 276, 148 S.E.2d 119 (1966). The purpose of the provision is to assure that "the tax shall be paid out of the estate before its distribution," and that if it must be collected after distribution, "the final impact of the tax shall be the same as though it had first been taken out of the estate before distribution. . . ." 267 N.C. at 283-284, 148 S.E.2d at 124. These statutory provisions are inapplicable here since the Receiver is not a distributee of the Estate. The Receiver is a fiduciary, appointed to dissolve the corporation and authorized to distribute the assets to the heirs in the proportions set out in the Consent Judgment. See, I.R.C. §§ 7701(a)(6), and 6901-03. In Wachovia Bank & Trust Co. v. Maxwell, Comr., 221 N.C. 528, 20 S.E.2d 840 (1942), proceeds of a life insurance policy were placed into a trust at the death of the insured. The wife, who was the sole owner and beneficiary of the policy, contended that the proceeds were not properly included in the Estate. It was held that the Administrator was entitled to recover funds from the trustee in order to pay the taxes assessed against the Estate as a result of the inclusion in the gross estate of the proceeds of the life insurance policy and that the beneficiary's remedy was to request that the trustee protest the payment of taxes and bring an action for a refund. The position of the Receiver in this case is analogous to the trustee in Maxwell. He is a fiduciary who is empowered to liquidate the corporate assets of the Ada McCoy Holding Corporation and to distribute its assets to the heirs of McCoy.

We hold that the Administrator is entitled to receive sufficient funds from the Receiver to pay the taxes assessed against the Estate of James Crawford McCoy which are attributable to the inclusion of the corporate assets in the taxable estate. See, I.R.C. §§ 6901-03.

Nor do we find merit in appellants' contention that the tax liability should not be assessed according to the shares each heir would receive under the North Carolina Intestate Succession Act, G.S. 29-1 et seq., as ordered by Judge Thornburg. Under the Act, each heir was entitled to receive 12% of the estate. See, G.S. 29-15. The burden of paying taxes arose as a result of their being the heirs of James Crawford McCoy. In Pulliam v. Thrash, 245 N.C. 636, 97 S.E.2d 253 (1957), the court held that tax liability must be assessed according to the shares that the devisees took under the will, and not according to the shares the parties received under a family settlement agreement, unless the agreement specifically provided otherwise. The same rule applies here. The parties are to be taxed according to the share each heir is entitled to receive under the North Carolina Intestate Succession Act and not according to the share each heir received under the Consent Judgment. Since the Consent Judgment did not address the issue of apportionment of estate tax liability, it does not alter the tax liability of the parties. See, Note, TaxationEffect of North Carolina Inheritance Tax on a Will Compromise Agreement, *476 36 N.C.L.Rev. 236 (1958). For a general discussion of the effect of a will compromise agreement on estate or inheritance taxes, see, Annot., 36 A.L.R.2d 917 (1954).

Appellants' fourth contention is that Pauline Van Hook clearly owned 10 shares of stock by virtue of a judgment entered against the decedent in McDowell County in 1957, and that each of the directors was required to hold one share of stock in the Ada McCoy Holding Corporation, and that they therefore owned one share apiece prior to the death of McCoy. The order entered by Judge Thornburg, however, properly concluded that the Receiver must pay the taxes, and appellants' remedy is to sue for a refund. See, Wachovia Bank & Trust Co., supra. Judge Thornburg ordered the Administrator to sue for a refund of taxes if the appellants supplied him with sworn affidavits claiming prior ownership of stock in the Ada McCoy Holding Corporation. We find no merit in appellants' contention.

Affirmed.

BROCK, C. J., and HARRY C. MARTIN, J., concur.