- 10 -
payment order made by the customer would be effective for 6
months. D.C. Code Ann. sec. 28:4-403(2) (1981). Although
testimony was presented which portrays decedent as "bedridden"
prior to her death, there is no evidence that she had absolutely
no access to a telephone. Further, because Mark was also a
customer6 on the account in question, he could have ordered CFB
to stop payment at decedent's request.
Petitioner does not direct us to, nor have we found, any
State that recognizes delivery of a check to be a completed gift
of the underlying funds. See 38A C.J.S., Gifts, sec. 56 (1996)
("The gift of the donor's own check is but the promise of a gift
and does not amount to a completed gift until payment or
acceptance by the drawee."). Furthermore, mere possession of a
power to revoke, not the ability to exercise it, is controlling.
Estate of Alperstein v. Commissioner, 71 T.C. 351, 353-354
(1978), affd. 613 F.2d 1213 (2d Cir. 1979). Accordingly, we find
that decedent possessed the power to revoke the checks until
accepted or paid by CFB. Because CFB did not accept or pay the
checks until after decedent's death, they were not completed
gifts under the law of the District of Columbia.
Nevertheless, petitioner argues that under the relation-back
doctrine, the payment of checks by the drawee relates back to the
6D.C. Code Ann. sec. 28:4-104(1)(e) (1981), defines
"customer" to mean "any person having an account with a bank or
for whom a bank has agreed to collect items and includes a bank
carrying an account with another bank". (Emphasis added.)
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011