CHAPTER 9 - DELAWARE ESTATE TAX

AN ACT TO AMEND CHAPTER 6 OF THE REVISED CODE OF DELAWARE 1915, AS AMENDED BY CHAPTER 8 OF VOLUME 35 AND CHAPTER 8 OF VOLUME 38, LAWS OF DELAWARE, RELATING TO DELAWARE ESTATE TAX.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That Chapter 6 of the Revised Code of Delaware 1915, as amended by Chapter 8 of Volume 35 and Chapter 8 of Volume 38, Laws of Delaware, be and the same is hereby further amended by striking out and repealing all of 152A. Sec. 115A., and by inserting in lieu thereof the following new section:

152B. Sec. 115B. Delaware Estate Tax; Estates Subject to Tax; Administration and Enforcement; Collection of Tax by State Tax Department:--In addition to the tax prescribed by Section 109 of this Chapter, there shall be a tax to be known as "DELAWARE ESTATE TAX" on the estate of every person dying after the twenty-sixth day of February, 1926, and who at the time of his death was a resident of the State of Delaware, provided such estate is in the class of estates that are subject under the laws of the United States to a federal estate tax.

The said Delaware Estate Tax upon the estate of every decedent as aforesaid shall be computed as follows: The aggregate amount of the taxes due to the State of Delaware under the provisions of Section 109 of this Chapter in respect to any property, or estate, or interest therein, belonging to the decedent at the time of his death shall first be ascertained. To such amount there shall be added the aggregate amount of all estate, inheritance, legacy, and succession taxes actually paid to any other state or territory of the United States or to the District of Columbia in respect to any property owned by such decedent or subject to such taxes as a part of or in connection with his estate. The sum resulting from such addition shall then be deducted from an amount equal to the amount of the maximum credit allowable to the estate of the decedent by the Federal Estate Tax Law or laws for estate, inheritance, legacy or succession taxes paid to any State or territory or the District of Columbia. The remainder shall constitute and be the Delaware Estate Tax upon the estate of the decedent. In case of any estate where the amount to be deducted as aforesaid is equal to or greater than the aforesaid credit, allowed by Federal Estate Tax law or laws, then the said estate shall be exempt from the Delaware Estate Tax prescribed by this section.

(a) The administration and enforcement of the provisions of this section and the collection of the taxes imposed by this section are hereby vested in the State Tax Department and the State Tax Commissioner as created and defined in Chapter 8 of Volume 36, Laws of Delaware.

(b) The State Tax Department shall:

(1) Prepare all necessary forms and blanks required in the administration and enforcement of the provisions of this section and the collection of taxes imposed by this section.

(2) Pay daily to the State Treasurer, for the use of the State, all sums collected by the said State Tax Department, except such sums as are retained in accordance with the provisions of this section.

(3) The said State Tax Department shall be and hereby is authorized to retain out of the sums collected under this section such amounts as the said State Tax Department shall deem necessary to defray the expenses of administering and enforcing the duties prescribed by this section, until such time as appropriation therefor is provided by the General Assembly.

The said Delaware Estate Tax shall be due from every decedent's estate subject thereto within thirty days after the ascertainment of the amount of the inheritance tax prescribed in the preceding sections of this Chapter and the amount of the federal estate tax on such estate. From the due date, and until paid, said taxes shall bear interest at the rate of four per cent per annum.

It shall be the duty of the said State Tax Department to compute and ascertain the amount of the Delaware Estate Tax on the estate of such decedent as soon as it is practicable to do so, and said State Tax Department shall forthwith deliver to the State Treasurer a statement in writing showing the several facts upon which the Delaware Estate Tax on said decedent's estate was based and computed as aforesaid, and the amount of said Delaware Estate Tax on said decedent's estate. Such statement shall be preserved by the State Treasurer.

It shall be the duty of the executor or administrator of a decedent to pay to the State Tax Department the full amount of the said Delaware Estate Tax when the same is due as aforesaid out of any moneys belonging to such estate in his hands; the amount so paid to be for the use of the State of Delaware.

If there shall be insufficient moneys in his hands for the payment of the Delaware Estate Tax, the executor or administrator shall have the same powers and duties in respect to the raising of funds for the payment of said tax as in the case of raising funds for the payment of a decedent's debts generally.

If the Delaware Estate Tax or any part thereof be paid out of moneys arising from the sale of any property of the decedent, real or personal, which upon the death of the decedent passes to any particular person or to particular persons (or if to avoid such sale such person or persons voluntarily paid to the executor or administrator in money the amount of said tax or any part thereof) such person or persons shall be entitled to a just and equitable contribution by the persons receiving any other property of the decedent which was subject to equal or prior liability for the payment of said tax. The Orphans' Court of the County of the decedent's residence, or the Orphans' Court of the County where any real property of the decedent is situated shall have all power necessary to enforce contribution as aforesaid.

"The State Tax Department receiving any tax under the provisions of this Act shall give the persons paying the same duplicate receipts therefor, one of which shall be forwarded by the person so paying as aforesaid, to the State Treasurer to be by him preserved and either of said duplicate receipts shall be evidence in suit upon the bond of said State Tax Commissioner to recover the tax so by him received.

No final settlement of the accounts of any executor or administrator shall be accepted or allowed by any Register of Wills until such Register of Wills shall have ascertained that all taxes imposed under the provisions of this Act, with interest if any is due, have been paid and the certificate of the State Tax Department filed with the Register of Wills shall be proof of such payment."

Every executor or administrator, the estate of whose decedent is taxable for the Delaware Estate Tax, shall be personally liable for the payment thereof as aforesaid, and the faithful performance of his duties under this Section shall be deemed to come within the condition of his official bond. Any failure to perform his duties under this Section shall forfeit his right to all commissions for settling the estate of his decedent.

In case any executor or administrator shall fail to perform his duties under this Section, the State Tax Department shall without delay notify the State Treasurer of such failure.

It shall be the duty of the State Treasurer and the State Tax Department to communicate to the Attorney General any failure of any executor or administrator to perform his duties under this Section. The Attorney General shall thereupon take appropriate proceedings in the premises.

The provisions of this Section shall not apply to the case of any estate the federal estate tax on which was actually paid prior to April 29th, A. D. 1927.

When any amount has been erroneously paid as Delaware Estate Tax it shall be lawful for the State Treasurer, on satisfactory proof rendered to him of said erroneous payment, and upon the recommendation of the State Tax Department, to refund and pay to the executor, administrator or trustee, person or persons who have paid any such tax in error, the amount of such tax so paid, provided that all applications for the repayment of said tax shall be made within three years from the date of said payment.

Nothing in this Act shall be deemed to remit or relieve from the Delaware Estate Tax the estate of any person dying before the approval of this Act. Except where the Delaware, Estate Tax was paid and discharged prior to the approval of this Act, the Delaware Estate Tax computed and ascertained under the provisions of 152A. Section 115A., of Chapter 6, of the Revised Code of Delaware 1915, as amended by this Act, shall be deemed and held to be imposed upon and collectible out of the estate of every person dying after the twenty-sixth day of February, 1926, and who at the time of his death was a resident of the State of Delaware, provided such estate was subject to federal estate tax.

The State Tax Department shall, immediately upon the approval of this Act, have jurisdiction of, and take into its control, for the purposes of further administration and final settlement, all taxes, taxable affairs, assessments, proceedings, suits, and matters now pending, and subject to existing laws of the State, which have heretofore been under the jurisdiction and control of the Registers of Wills of the several counties of the State; and said Registers of Wills are hereby directed to deliver to the State Tax Department, on demand, a full and complete itemized statement of the same. Any Register of Wills refusing or neglecting to make up and deliver such itemized statement within sixty days after demand therefor by the State Tax Department, shall be deemed guilty of a misdemeanor and upon conviction thereof by any Court of competent jurisdiction, shall be liable to a fine not exceeding One Thousand Dollars ($1,000.00), or to imprisonment for a term not exceeding one year, or to both fine and imprisonment, in the discretion of the Court. Nothing herein contained shall be deemed to relieve the said Registers of Wills from liability under their respective bonds, for any responsibility that may have been heretofore incurred.

Section. 2. That all acts and parts of acts inconsistent with the provisions of this Act are hereby repealed to the extent of such inconsistency.

Approved April 12, 1935.