This is a case involving the estate of Harold Arrowsmith (decedent) who died intestate in Germany on August 15, 1989. He was born, raised and educated in Maryland, living in that state until 1974. In 1975, he moved to Germany. Decedent kept his American citizenship for the rest of his life, he filed U.S. income tax returns and retained a Maryland driver’s license. On the other hand, he only occasionally came back to the U.S. to announce the results of his research and writings.
Decedent’s Maryland assets were mostly in the form of publicly-traded securities worth almost $30,000,000 and held by the Mercantile Safe Deposit and Trust Company. At the outset, decedent’s heirs-at-law, one of whom is Jeffery A. Arrowsmith, sought probate in the Register of Wills in Baltimore County (“the Register”) in September 1989 on the theory that decedent had been domiciled in Maryland and that a majority of his assets are located there. In May 1990, the heirs paid $2,000,000 to the Register as an advancement on the 10% state inheritance taxes, paid Maryland estate taxes in almost the same amount and paid about $11,000,000 in Federal estate taxes.
Meanwhile, German tax authorities, who did not know the identity of decedent’s heirs, appointed a curator to file probate proceedings and generally to administer decedent’s estate under German law. These authorities decided that decedent was a German domiciliary at the time of his death and assessed inheritance taxes on his worldwide estate. The curator having seized decedent’s German assets in the amount of about $1,000,000, there remained an inheritance tax balance of about $16,488,790.
To prevent subjection to double taxation, the heirs sought relief from the Competent Authority of the United States (CAUS) pursuant to the Convention between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation with respect to Taxes on Estates, Inheritances and Gifts, T.I.A.S. No. 11082 (1986) (the Treaty). On November 9, 1995, the CAUS agreed with the Competent Authority of Germany (CAG) that decedent’s domicile had been Germany, thus giving Germany the primary right to tax the estate’s worldwide assets under the Treaty.
The heirs then asked for a refund of the federal estate taxes. Under the Mutual Agreement, the I.R.S. finally decided to pay the refund directly to the German government. On November 9, 1998, three years after the Agreement, the heirs filed for refunds of the Maryland estate and inheritance taxes. The Maryland Comptroller of the Treasury granted the heirs request in the amount of $1,717,578.61. The Register of Wills, however, rejected the request as untimely under Tax-General Article 13-1104(a) without reaching the merits of the heirs’ entitlement to the refund.
The Maryland Tax Court agreed with the Register. The Circuit Court for Baltimore County, however, reversed. The Court of Appeals of Maryland granted certiorari to review the judgment below. The Court of Appeals reverses the judgment of the Circuit Court for Baltimore county and remands the case to the Circuit Court with directions to affirm the decision of the Maryland Tax Court.
The need for a Treaty to avoid double taxation of individuals or corporations arises because different countries define “domicile” in different ways. In cases like this one, a person can be a non-resident citizen of the U.S. like decedent but have an “habitual abode” in Germany, thus rightfully qualifying as domiciliary under the law of both nations. Fortunately, the parties’ stipulation that Germany was decedent’s domicile and hence the primary taxing jurisdiction at the time of his death makes it unnecessary for the Court of Appeals to discuss the issue.
Treaty Article 9, however, does not grant Germany an exclusive right to tax and the U.S. may tax the estate pursuant to its laws. To avoid double taxation when countries A and B rightfully tax a decedent’s estate, Article 11 sets up a system whereby A “credits” against its taxes the amounts paid in B. Article 11(4), for example, expressly applies the credit system to political subdivisions, such as Maryland.
Referring to Mutual Agreements between the Contracting states, Article 13(5) provides that, “[i]n the event that the competent authorities reach such an agreement, taxes shall be imposed and, notwithstanding any procedural rule (including statutes of limitations) applicable under the law of either Contracting State, refund or credit of taxes shall be allowed ...”
The Court first lays out the constitutional basis for state compliance with treaties. “...[T]here is no question that state courts are obligated to obey and respect treaties made under such authority. See U.S. Const. art. VI, Section 2. Similar to statutory interpretation cases, adherence to the text of a treaty is the primary objective in interpreting the rights and duties therein. (Cit.) The interpreter may look not only to the text of the treaty but to ‘the context in which the written words are used’ to give sensible meaning to the treaty provisions. (Cit.) In the case presently before us, the plain meaning of the Treaty text compels the conclusion that the Treaty acts as a limitation on federal taxing authorities and not on the states.” [Slip op. 5]
Thus, Article 2(1)(a) makes the treaty applicable to: “In the case of the United States of America: The Federal estate tax and the Federal gift tax, including the tax on generation-skipping transfers.” [Id.] [emphasis added]
“First, the Treaty explicitly considers the potential for taxation by ‘political subdivisions’ of the United States when discussing the credit system in Article 11, paragraph 4. ... Use of the term ‘political subdivision’ demonstrates that the drafters were clearly cognizant of the double taxation issues that might arise as a result of estate taxation imposed during state probate proceedings. Had the drafters intended the Treaty to ‘necessarily’ apply to state estate and inheritance taxes, there would be no need for a separate provision that unequivocally refers to the credits afforded for state taxation. Just as we reprehend rendering portions of statutes surplusage, (Cit.) so too do we find it beyond our proper judicial capacity to render provisions of Federal treaties meaningless by an interpretation which would fail to give effect to all provisions absolutely. ...”
“Second, the purpose of the Treaty is not eviscerated [as the heirs contend] by virtue of state taxation of non-itemized property -- e.g. the intangible assets taxed in this case. In the event that a credit is not allowed by an express provision, the Treaty directs the Competent Authorities to consult for the purpose of avoiding double taxation. See Treaty, Art. 13(3). Contrary to what the [heirs] argue, the Treaty does not mandate that the political subdivisions forbear state probate proceedings in the event that a credit is not allowed; rather, the Treaty requires convergence of the Competent Authorities to endeavor to resolve these cases. See Treaty, Art. 13(3).” [Slip op. 5-6]
The Court also finds support in the extratextual understandings expressed in the document accompanying the Senate’s consent to presidential ratification.
“The Senate continued, ‘[i]n determining the amount of credit to allow, Germany will allow a credit for taxes ‘imposed by political subdivisions of the United States. Thus, although state inheritance and gift taxes are not covered by the proposed treaty, Germany has agreed to permit a credit against its taxes for state taxes.’ Id. at 12.”
“Thus, not only does a textual reading of the Treaty clearly indicate that it exclusively applies to Federal death taxes, but the Senate's express language, e.g. ‘the proposed treaty does not apply to ... taxes imposed by state or local governments,’ impedes the ability to put forth any rational challenge to such application. ... In explaining Article 2 of the Treaty (the ‘Taxes Covered’ provision), the Senate [also] stated, ‘[a]s is generally true of other U.S. estate tax treaties, the proposed treaty does not apply to death or gift taxes imposed by state or local governments.’ See Senate Treaty Doc. No. 97-1, at 6 (emphasis added).” [Slip op. 6]
“While we are one of a small number of courts to consider the impact of federal estate tax treaties on state probate proceedings, we are not the first. Given that the substance and purpose of these bilateral agreements are virtually identical, given that other bodies of authority, intimately involved in the making and implementation of these treaties (e.g. the Department of Treasury and the Senate Committee on Foreign Relations) have expressly asserted the inapplicability of the treaty provisions to state probate proceedings, and given the outcome of other similar judicial claims, we find significant support for our holding today that the United States-Germany Estate Tax Treaty does not impose on Maryland any duty or obligation to alter its probate proceedings to accommodate the [heirs]. Furthermore, and most critical to our resolution, the terms of the Treaty are not inconsistent with State law.” [Slip op. 9]
In addition, the heirs cannot claim that their request to CAUS included a request under Article XI(4) to resolve double taxation problems with these intangible assets which the “credit” system, without more, cannot correct. Their request was solely to have the CAUS determine the proper domicile and the primary taxing jurisdiction pursuant to Article IV(5).
Nor were the heirs persuasive when they argued that Article 13(5) of the Treaty bars the State from enforcing a procedural rule, i.e., the statute of limitations, if it would defeat a party’s relief from double taxation under the Treaty. This Article provides “[i]n the event that the competent authorities reach such an agreement taxes shall be imposed and, notwithstanding any procedural rule (including statutes of limitations) applicable under the law of either Contracting State, refund or credit of taxes shall be allowed by the Contracting States in accordance with such agreement.” (emphasis added).”
“On the face of it, however, this section refers to the laws of either the U.S. or Germany, not to the laws of their political subdivisions. Moreover, the Senate Committee’s explanation of the Article refers only to the statute of limitations under the Internal Revenue Code. Finally, Maryland is clearly not a ‘contracting state’ as to this Treaty nor have the heirs obtained a Mutual Agreement on the statute of limitations issue. Without impairing the Maryland probate law, the heirs had Treaty mechanisms that might well have resolved their unfortunate problem of double taxation but did not make use of them.” [Slip op. 12 ]
[Editorial Note: According to the Court, the United States is party to bilateral Estate and Gift Tax Treaties with the following 17 countries: Australia, Austria, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Netherlands, Norway, Sweden, Switzerland, Union of S. Africa, and the United Kingdom. (Slip op. 8, note 16).]
Citation: Register of Wills v. Arrowsmith, 2001 WL 915367 (Md. Ct. App. Aug. 15).
