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04/26/83 MATTER ESTATE VERONICA F. JOHNSON v.

April 26, 1983

IN THE MATTER OF THE ESTATE OF VERONICA F. JOHNSON, DECEASED. WILLIAM A. JOHNSON, FOREIGN PERSONAL REPRESENTATIVE OF THE ESTATE OF VERONICA F. JOHNSON, APPELLANT
v.
WISCONSIN DEPARTMENT OF REVENUE BUREAU OF FIDUCIARY, INHERITANCE & GIFT TAX, RESPONDENT



Appeal from a judgment of the Circuit Court for Dane County, Ervin M. Bruner, Judge.

Petition to Review Granted.

Gartzke, P.j., Dykman, J. and W. L. Jackman, Reserve Judge. Gartzke, P.j. (dissenting).

The opinion of the court was delivered by: Dykman

William A. Johnson, Personal Representative for the estate of Veronica F. Johnson, appeals from a summary judgment in favor of the Wisconsin Department of Revenue, Bureau of Fiduciary, Inheritance and Gift Tax. Johnson contends that the trial court erred because material issues of fact existed. We conclude that there are no material issues of fact and therefore affirm the trial court.

Veronica F. Johnson died on November 3, 1977. At the time of her death, she had an interest as a joint tenant in several parcels of real property. In the trial court, Johnson stipulated to the correctness of the Department's Certificate Determining Inheritance Tax as related to four parcels owned jointly by William A. Johnson and Veronica F. Johnson, husband and wife. The tax at issue concerns four other properties held jointly by Veronica Johnson, William Johnson and Arliss Hill. *fn1

The trial court's reasons for granting summary judgment are not part of the record. Johnson conceded in the trial court that Veronica Johnson had legal title to the properties in question. The trial court determined that no material issues of fact existed and the Department was entitled to summary judgment on its application of sec. 72.12(6), Stats. (1975), *fn2 to real property in Veronica Johnson's estate. *fn3

The standard for granting a motion for summary judgment has been reiterated numerous times. In Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 762, 300 N.W.2d 63, 69-70 (1981), the supreme court said:

"The purpose of summary judgment is to obviate the need for a trial where there is no genuine issue as to any material facts. It is a judgment rendered on the merits without a trial. The summary judgment procedure does not function as a substitute for a trial of any genuine issue of material fact, but permits a decision based on affidavits, records and for [ sic ] depositions. The party moving for summary judgment must demonstrate that a trial is not necessary and establish a record sufficient to demonstrate to the satisfaction of the court that there is no triable issue of material fact on any issue presented. Any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. If the trial court has determined the movant has proved to the court's satisfaction that there is no genuine issue of material fact as a matter of law, then the trial court should enter judgment." [Citations omitted.]

In reviewing the trial court's order granting summary judgment, we independently review the record to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500, 502-03 (1980).

The procedure used to determine whether any genuine issue of material fact exists was recently stated in Schroeder v. Schoessow, 103 Wis. 2d 380, 385, 309 N.W.2d 10, 12-13 (Ct. App. 1981):

The first step is to examine the pleadings to determine whether a claim has been stated and whether a genuine issue of fact is presented. If the complaint states a claim and the pleadings show the existence of factual issues, the second step is to examine the moving party's affidavits and other proof to determine whether the party has made a prima facie case for summary judgment. To make a prima facie case, a moving defendant must show a defense which would defeat the plaintiff. If the moving party has made a prima facie case, the third step is to examine the affidavits and other proof of the opposing party to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.

Johnson argues that the four properties were actually owned and operated by a partnership between Arliss Hill and himself. Veronica Johnson was therefore not a partner and did not have any ownership interest in the partnership.

Record title to the properties was held by Wm. A. Johnson and Veronica F. Johnson, his wife, an undivided one-half interest, and Arliss J. Hill, an undivided one-half interest. *fn4 Johnson contends that even though Veronica Johnson had record title to the properties, the properties belonged to the partnership and should not have been included in Veronica Johnson's estate for tax purposes. Johnson argues that because partnership proceeds paid for the properties, they must be presumed to be partnership property, citing In re Estate of Schaefer, 72 Wis. 2d 600, 611, 241 N.W.2d 607, 612 (1976). He concludes that the properties are therefore not taxable in Veronica Johnson's estate.

If the Department is correct in its interpretation of sec. 72.12(6), Stats., contribution or lack of contribution to the purchase of the properties by the decedent is irrelevant. The only relevant issue of fact is record title which is undisputed. *fn5 Under the Department's interpretation, only a question of law for the court remains. "Questions of law such as statutory construction are reviewable ab initio by this court and are properly subject to ...


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