ESTATE TAX

Discuss the different modes of acquiring ownership to properties.

1) Occupation (Arts. 713-720)

Things appropriable by nature which are without an owner, such as animals that are the object of
hunting and fishing, hidden treasure and abandoned movables, are acquired by occupation. Occupation
is a mode by the seizure of corporeal things which do not have an owner with the intention of acquiring
them and in accordance with the rules prescribed by law.

Its requisites are:

i. There must be a seizure or apprehension.

ii. The thing seized must be corporeal.
iii. The thing seized must be without any owner.
iv. There must be an intention to acquire ownership over the things.
v. There must be compliance with the rules prescribed by law.

2) Intellectual Creation (Arts. 721-724)

Intellectual creation is a mode by virtue of which the author acquires intellectual property or ownership
over the products of his intellect, with the consequent power to authorize or refuse publication or
production of such products.

By intellectual creation, the following persons acquire ownership:

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or
other work;

(2) The composer, as to his musical composition; The author and the composer shall have the
ownership of their creations even before the publication of the same. Once their works are
published, their rights are governed by the Copyright laws.

(3) The painter, sculptor, or other artist shall have dominion over the product of his art even
before it is copyrighted;

(4) The scientist or technologist or any other person with regard to his discovery or invention,
has ownership over it even before it is patented.

3) Law

In law, independently of the other modes, automatically and directly vests the ownership of the thing in
a certain individual once the prescribed requisites or conditions are present or complied with.

4) Donation (Arts. 725-773)

Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of
another, who accepts it. It is when the gift imposes upon the donee a burden which is less than the
value of the thing given.

Its requisites:
1. Decrease or reduction of the patrimony of the donor.
2. Increase the patrimony of the donee.
3. Intent to make a donation. (Animus donandi)

5) Tradition

Tradition is a derivative mode by virtue of which they are transmitted from the patrimony of the grantor
to that of the grantee by means of a just title, there being both the intention and the capacity on the
part of both parties.

Its requisites are:

1. Right to be transmitted should have previously existed in the patrimony of the grantor.
2. Transmission should be by virtue of a just title.
3. Grantor and grantee should have the intention and the necessary capacity to transmit and to
acquire.
 4. Transmission should be manifested by some act which may be physical, symbolical or legal.

6) Contract

A contract is a meeting of minds between two persons whereby one binds himself, with respect to the
other, to give something or to render some service. (Article 1305)

Essential elements - those without which there can be no contract

a. Consent
b. Subject matter
c. Cause or consideration

Property may also be acquired by agreement or a contract which is enforceable by law. The owner of a
right can transfers his rights in property to another with or without consideration. if it is for
consideration it is called a sale and if it is without consideration it is called a gift or donation.

7) Prescription

By prescription, one acquires ownership and other real rights through the lapse of time in the manner
and under the conditions laid down by law. In the same way, rights and conditions are lost by
prescription. (Art. 1106)

8) Succession

Succession is a mode of acquisition by virtue of which, the property, rights and obligations to the extent
of the value of the inheritance, of a person are transmitted through his death to another or others either
by his will or by operation of law.

Succession of the property of a person may be either tested it or it may be intestate by means of a will
or without a will. If the deceased has made a will, then succession would take place according to the
term to the will. But if there is not will, then succession will take place by the operation of law which is
known as non-testamentary succession. In case there are no heirs of the deceased, his property shall go
to the State.

2. Discuss the Order of Intestate Succession.

1) Descending Direct Line - Legitimate children and their descendants succeed the parents and other
ascendants, without distinction as to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate
child.

2) Ascending Direct Line - In default of legitimate children and descendants of the deceased, his parents
and ascendants shall inherit from him, to the exclusion of collateral relatives. The father and mother, if
living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire
estate of the child.

3) Illegitimate Children - In the absence of legitimate descendants or ascendants, the illegitimate

children shall succeed to the entire estate of the deceased. If, together with illegitimate children, there
should survive descendants of another illegitimate child who is dead, the former shall succeed in their
own right and the latter by right of representation.

4) Surviving Spouse - In the absence of legitimate descendants and ascendants, and illegitimate children
and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any.

5) Collateral Relatives - If there are no descendants, ascendants, illegitimate children, or a surviving

spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles.

6) The State - In default of persons entitled to succeed in accordance with the provisions of the
preceding Sections, the State shall inherit the whole estate. In order that the State may take possession
of the property, the pertinent provisions of the Rules of Court must be observed.

3. Discuss the following properties included in the Gross Estate:

a) Property – The property owned by the decedent “Actually and Physically presented in his estate” at
the time of his death such as land, buildings,

shares of stock, vehicles and bank deposit, and the like.

b) Taxable transfers

i. Transfer in contemplation of death – This is a disposition of property prompted by the thought of

death. The thought of death is considered as a controlling motive which induces the disposition of the
property for the purpose of avoiding the tax. Included in the gross estate the value of property
transferred by the decedent during his lifetime in anticipation of his death such as:

(a) Transfer of property in favor of another person, but the transfer was intended to take effect
only upon the transferor’s death.

(b) Transfer by gift intended to take effect at death, or after death or under which the donor
reserved the income or the right to designate the person who shall possess or enjoy the
property or the income.

ii. Revocable transfers – it is a transfer where the terms of enjoyment of the property may be altered,
amended, revoked or terminated by the decedent. It is sufficient that the decedent had the power to
revoke though he did not exercise the power.

iii. Transfer under a general power of appointment – This is a transfer where the power of appointment
authorizes the donee of the power to appoint any person he pleases. The power may be exercised in
favor of anybody including the donee-decedent. The donee of a general power of appointment holds
the appointed property with all the attributes of ownership thus, appointed property shall form part of
the gross estate of the donee or beneficiary of the power upon his death.

4. Discuss the different valuation of gross estate:

a) Real property – The Higher Value between the Fair Market Value determined by the Commissioner,
and the F air Market Value as shown in the schedule of values fixed by the provincial and city assessors.

b) Shares of stock – the Higher value between:

- Unlisted common share: Book value per share of the issuing corporation
- Unlisted preference share: Par value per share
- Listed share: Fair Market Value shall be the arithmetic mean between the highest and lowest
quotation at a date nearest the date of death if none is available on the date of date of the
death.
c) Right to usufruct, use or habitation, annuity – In accordance with the latest Basic Standard Mortality
Table taking into account the probable life of the beneficiary, to be approved by the Secretary of
Finance upon recommendation of the Insurance Commissioner.

5. Determine the situs of taxation for the following:

a) Accounts receivable – Residence of the debtor

b) Bank deposit – Location of the depository bank

c) Copyright, trademark, patent & franchise – Where the intangible is exercised regardless of where
the corresponding certificate is stored