[Cite as In re Armogida, 2013-Ohio-195.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
                                              :   W. Scott Gwin, P.J.
IN RE: ESTATE OF VELIA                        :   Sheila G. Farmer, J.
ARMOGIDA, DECEASED                            :   Julie A. Edwards, J.
                                              :
                                              :   Case No. 2012 CA 00144
                                              :
                                              :
                                              :   OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from Stark County
                                                   Probate Court Case No. 213468

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            January 14, 2013

APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

JAMES A. ARMOGIDA                                  RICHARD D. DODEZ
24 Purista Lane                                    Black, McCuskey, Souers &
Hot Springs Village, AR 71909                      Arbaugh
                                                   220 Market Avenue, South
                                                   Suite 1000
                                                   Canton, Ohio 44702
[Cite as In re Armogida, 2013-Ohio-195.]


Edwards, J.

          {¶1} Appellant, James A. Armogida, appeals from the June 29, 2012,

  Judgment Entry of the Stark County Probate Court.

                                STATEMENT OF THE FACTS AND CASE

          {¶2} James Armogida and Velia Armogida, husband and wife, during their

  lifetimes created an estate plan involving several inter vivos trusts. The trusts provided

  that the property of the first to die would be divided into two separate trust funds, one

  referred to as “Trust A” and the other referred to as Trust “B”. Both Trusts stated, in

  Article VI paragraph 2, in relevant part, as follows:

          {¶3} “2. If [my husband or my wife] survives me and if the trust estate, including

  any additions as a result of my death exceeds the largest amount that can pass free of

  federal estate tax by the full use of the “Exemption Equivalent,” then the Trust estate

  shall be divided into two separate Trust funds, one of which shall be referred to as

  Trust ‘A’ and the other of which shall be referred to as Trust ‘B.’ The Trustee first shall

  allocate to Trust ‘B’ property having a fair market value at the date or dates of

  distribution which is equal to the ‘Exemption Equivalent’ reduced by the value as

  finally determined for federal estate tax purposes of all other property included in my

  gross estate which does not qualify for the federal estate tax marital deduction or

  charitable deduction. The balance of the trust estate which qualified for the marital

  deduction for federal estate tax purposes shall be allocated to Trust ‘A.’” The two

  trusts had different beneficiaries.

          {¶4} James Armogida died on February 22, 2006 survived by his wife, Velia

  Armogida. At the time of his death, his trust was divided into two trusts. Trust B, the
Stark County App. Case No. 2012 CA 00144                                               3


 family trust, contained two million dollars while the balance was deposited in Trust A,

 the marital trust.   James Armogida’s trust provided that the entire net income from

 Trust A and Trust B was to be paid to his wife or expended for her benefit during her

 lifetime and that “the Trustee may pay to or expend for the benefit of my wife so much

 of the principal from time to time as the Trustee … shall deem necessary or

 desirable…”

        {¶5} The Executor of the James V. Armogida Estate made a QTIP (Qualified

 Terminable Interest Property) Election on the Ohio Estate Tax Return which reduced

 to zero the tax liability for the Estate of James V. Armogida. If the QTIP election was

 not made, James V. Armogida’s Estate would have owed $158,761.00 in Ohio estate

 taxes. The Ohio Department of Taxation, in two letters dated October 10, 2006, had

 advised the Estate that it had $481,459.00 in QTIP under R.C. 5731.15(B),

 representing 86.2% of Trust A, and $1,385,727.00 in QTIP, representing 69.29% of

 Trust B. The two letters further stated, in relevant part, that “[t]his same percentage,

 to the extent not consumed or given away, must be included in the surviving spouse’s

 gross estate based upon the value of the assets at the surviving spouse’s date of

 death.”

        {¶6} Velia Armogida died on October 23, 2011. Her Last Will and Testament

 was admitted to Probate.

        {¶7} On March 19, 2012, the Executor of her Estate and the Trustee of her

 Trust filed an Application for Instructions, asking the Probate Court to determine

 whether or not R.C. Section 2113.86, the Apportionment Statute, applied so that the

 Ohio Estate tax attributable to a portion of James V. Armogida’s Living Trust being
Stark County App. Case No. 2012 CA 00144                                                  4


 taxed in Velia Armogida’s Estate would be paid by the James V. Armogida Living

 Trust. Appellant, a beneficiary of the James V. Armogida Trust, filed an objection to

 apportionment, arguing, in part, that “[a]s clearly set out in my Aunt’s Will, both of them

 intended that there would be no apportionment payable by the trust of the first to die,

 unless necessary, and that all of the death taxes would be paid by the survivors

 residual estate.” A hearing on such application was held on May 16, 2012.

        {¶8} Pursuant to a Judgment Entry filed on June 29, 2012, the trial court found

 that R.C. 2113.86 was applicable and held that “the Administrator of the Estate of

 Velia Armogida may recover from the James Armogida Living Trust that amount by

 which the estate tax payable by the Estate of Velia Armogida exceeds the estate tax

 that would have been payable if the value of the property had not been included in the

 gross estate of the decedent.”

        {¶9} Appellant, now appeals from the trial court’s June 29, 2012, Judgment

 Entry, raising the following assignments of error on appeal:

        {¶10} “I. THE PROBATE COURT ERRED IN RULING THAT THE INTENT ON

 THE PART OF THE TESTATOR/DECEDENT TO CAUSE PAYMENT OF HER

 ESTATE TAXES IN A MANNER CONTRARY TO THE APPORTIONMENT METHOD

 SET FORTH IN R.C. 2113.86 WAS NOT CLEARLY AND UNAMBIGUOUSLY

 EXPRESSED IN HER WILL.

        {¶11} “II. THE PROBATE COURT ERRED IN RULING THAT THE 3rd

 SENTENCE IN ITEM I OF VELIA’S WILL (i) RELATES ONLY TO VELIA’S INTER

 VIVOS TRUST AND IS INAPPLICABLE TO JAMES V. ARMOGIDA’S INTER VIVOS

 TRUST A AND B, AND (ii) IS NOT A LIMITATION ON THE ESTATE OF VELIA
Stark County App. Case No. 2012 CA 00144                                           5


 ARMOGIDA AS TO REQUESTING ANY PAYMENT BY JAMES V. ARMOGIDA’S

 INTER VIVOS TRUST A AND B.

       {¶12} “III. THE PROBATE COURT ERRED IN RULING THAT THE

 DECEDENT’S WILL DID NOT MAKE ADEQUATE REFERENCE TO QUALIFIED

 TERMINAL [SIC] INTEREST MARITAL DEDUCTION PROPERTY AS PROVIDED IN

 THE LAST SENTENCE OF R.C. 2113.86(I) BECAUSE, ACCORDING TO THE

 RULING, THE PLACEMENT OF THE REFERENCE IN VELIA’S WILL LIMITS ITS

 APPLICABILITY.

       {¶13} “IV. IF THE REFERENCES IN VELIA’S WILL WERE NOT ENOUGH TO

 SATISFY    THE    REQUIREMENTS        FOR      INAPPLICABILITY     OF   THE   OHIO

 APPORTIONMENT LAW UNDER R.C. 2113.86(I), WHICH APPELLANT DENIES,

 THE   PROBATE       COURT     ALSO    APPARENTLY           ERRED   IN   NOT   EVEN

 CONSIDERING THE REFERENCES IN VELIA’S INTER VIVOS TRUST WHICH ARE

 PERTINENT TO DETERMINATION OF INAPPLICABILITY UNDER R.C. 2113.86(I).

       {¶14} “V. THE RULING BY THE PROBATE COURT WAS NOT ONLY

 INEQUITABLE AND UNNECESSARY, BUT ALSO IS CONTRARY TO EACH AND

 EVERY ONE OF THE INSTRUCTIONS DEALING WITH APPORTIONMENT GIVEN

 BY VELIA TO THE EXECUTOR OF HER WILL AND TO THE TRUSTEE OF HER

 INTER VIVOS TRUST, AND GIVEN BY JAMES V. ARMOGIDA TO THE TRUSTEE

 OF HIS TRUSTS A AND B.”

                                        I, II, III, IV, V

       {¶15} Appellant, in his five assignments of error, argues that the trial court

 erred in finding that R.C. 2113.86, the Apportionment Statute, was applicable and in
Stark County App. Case No. 2012 CA 00144                                                6


 holding that the Administrator of the Estate of Velia Armogida may recover from the

 James Armogida Living Trust “that amount by which the estate tax payable by the

 Estate of Velia Armogida exceeds the estate tax that would have been payable if the

 value of the property had not been included in the gross estate of the decedent [Velia

 Armogida].”

       {¶16} R.C. 2113.86 states, in relevant part, as follows: “(A) Unless a will or

 another governing instrument otherwise provides, and except as otherwise provided in

 this section, a tax shall be apportioned equitably in accordance with the provisions of

 this section among all persons interested in an estate in proportion to the value of the

 interest of each person as determined for estate tax purposes.

       {¶17} “(B) Except as otherwise provided in this division, any tax that is

 apportioned against a gift made in a clause of a will other than a residuary clause or in

 a provision of an inter vivos trust other than a residuary provision, shall be

 reapportioned to the residue of the estate or trust. It shall be charged in the same

 manner as a general administration expense. However, when a portion of the residue

 of the estate or trust is allowable as a deduction for estate tax purposes, the tax shall

 be reapportioned to the extent possible to the portion of the residue that is not so

 allowable….

       {¶18} “(I) If any part of an estate consists of property, the value of which is

 included in the gross estate of the decedent by reason of section 2044 of the “Internal

 Revenue Code of 1986,” 100 Stat. 2085, 26 N 2044, as amended, or of section

 5731.131 of the Revised Code, the estate is entitled to recover from the persons

 holding or receiving the property any amount by which the estate tax payable exceeds
Stark County App. Case No. 2012 CA 00144                                                7


 the estate tax that would have been payable if the value of the property had not been

 included in the gross estate of the decedent. This division does not apply if the

 decedent's will or another governing instrument provides otherwise and the will or

 instrument refers to either section mentioned in this division or to qualified terminable

 interest marital deduction property.” (Emphasis added).

         {¶19} Statutory construction is a legal issue and is reviewed by this Court de

 novo. See Yommer v. Outdoor Enterprises, Inc., 126 Ohio App.3d 738, 740, 711

 N.E.2d 296 (5th Dist. 1998).

         {¶20} The Ohio General Assembly passed R.C. 2113.86(I) “to codify the

 prevailing presumption that testators do not normally intend to exonerate a QTIP trust

 of its equitable apportionments of estate taxes.” Estate of Vahlteich v. Comm’r. of

 Internal Revenue, 69 F.3d 39 537 (6th Cir. 1995), 4. As noted by the court in In re

 Estate of Baltic, 191 Ohio App.3d 354, 2010-Ohio-5141, 946 N.E.2d 244, ¶7, “Any

 intent on the part of a testator or settlor that estate taxes are to be paid in a manner

 contrary to the apportionment method set forth in R.C. 2113.86 must be clearly

 expressed in the will. PNC Bank, Ohio, N.A. v. Roy, 152 Ohio App.3d 439, 2003-Ohio-

 1542, 788 N.E.2d 650. This contrary intent ‘must be clear, specific, and unambiguous’

 Matthews v. Swallen (Oct. 25, 1995), Hamilton App. No. C–940443, 1995 WL 621305.

 The settlor or testator's intent is determined by the language of the testamentary

 documents. Carr v. Stradley (1977), 52 Ohio St.2d 220, 6 O.O.3d 469, 371 N.E.2d

 540.”

         {¶21} In the case sub judice, Item 1 of the Last Will and Testament of Velia

 Armogida, which is captioned “Payment of Debts and Taxes”, states as follows:
Stark County App. Case No. 2012 CA 00144                                                8


       {¶22} “I direct that my Executor pay out of my residuary estate all my lawful

 debts and the expenses of administering my estate and of my last illness and funeral.

 My Executor shall also pay estate and other death taxes, and any interest and

 penalties thereon, if any, without apportionment. My Executor may request of the

 trustee of any trust, which permits payment, such sums as my Executor deems

 necessary to pay any part or all of the taxes, debts and expenses of my estate, and

 any bequest payable hereunder. It is my intention that, to the extent possible and in

 the Executor’s absolute discretion, all death taxes attributable to property passing

 under this Will or any Trust which qualifies for the marital deduction in my estate shall

 be paid out of that portion of my residuary estate (or trust estate) which does not

 qualify for said deduction.” (Emphasis added).

       {¶23} Appellant contends that the trial court ignored or misunderstood the

 above underlined sentence. According to appellant, such sentence demonstrates that

 Velia Armogida did not intend for the apportionment statute to apply. However, the

 above provision does not refer to either section 2044 of the Internal Revenue Code of

 1986 or to R.C. Section 5731.131. In addition, there is no mention in Item I to qualified

 terminable interest marital deduction property. Such provision, therefore, does not

 comply with R.C. 2113.86(I).     None of the markers required in such section are

 included within such sentence.

       {¶24} Appellant, in his brief, also argues that the third sentence in Item I of

 Velia’s Will meets the requirements of R.C. 2113.86(I). Appellant specifically cites to

 the following language: “My Executor shall also pay estate and other death taxes,…if

 any, without apportionment. My Executor may request of the trustee of any trust,
Stark County App. Case No. 2012 CA 00144                                                9


 which permits payment, such sums as my Executor deems necessary to pay any part

 or all of the taxes, debts and expenses of my estate,…” According to appellant, this

 sentence, when considered in relation to the remaining language in Item I, requires

 her Executor to “fully pay taxes from monies in her estate unless the funds in it are

 inadequate and it is necessary to look elsewhere.”

       {¶25} As is stated above, R.C. 2113.86(I) provides that taxes shall be

 apportioned unless “the decedent’s will…provides otherwise and the will…refers to

 either section mentioned in this division or to qualified terminable interest marital

 deduction property.” Velia Armogida’s will provides, in Item I, that taxes are to be paid

 without apportionment unless the Executor of her will deems it necessary to request

 payment of taxes from the trustee of any trust.        The Will, therefore, generically

 excludes all trusts from apportionment. However, the above language from her will

 does not specifically comply with R.C. 2113.86(I) because it does not refer to either

 Section 2044 of the Internal Revenue Code or to R.C. 5731.131. Moreover, there is

 no mention to qualified terminable interest marital deduction. Therefore, pursuant to

 R.C. 2113.86(I), taxes are to be apportioned.

       {¶26} Appellant further contends that Item V Paragraph 7 of the Last Will and

 Testament of Velia Armogida references QTIP property and that the trial court erred in

 finding that such reference was not sufficient for purposes of R.C.2113.86. Item V is

 captioned “Executor”. Paragraph 7 provides, in relevant part, that the Executor shall

 have the following power exercisable without court approval:          “To elect, in the

 Executor’s sole discretion, that any portion of any property be treated as qualified

 terminable interest property…” The trial court found, and we concur, that this language
Stark County App. Case No. 2012 CA 00144                                                10


 is “not sufficient for purposes of R.C. 2113.86 in that its placement limits its

 applicability to powers conferred upon the Executor.” Such language does not clearly

 express an intent on the part of a testator or settlor that estate taxes are to be paid in

 a manner contrary to the apportionment method set forth in R.C. 2113.86.

        {¶27} In short, we concur with the trial court that there is no language in the

 Last Will and Testament of Velia Armogida meeting the requirements of R.C.

 2113.86(I).

        {¶28} In his brief, appellant also maintains that language in Velia Armogida’s

 inter vivos trust, which is another “governing instrument” as referred to in R.C.

 2113.86, must be considered in determining whether or not R.C. 2113.86 applies.

 Appellant specifically cites to the following language contained in Article XI, which is

 captioned “Limitations, Severability and/or Reconstruction:”

        {¶29} “Notwithstanding anything contained in this Trust Agreement to the

 contrary, the Trustee shall not take any actions or adopt any methods of payment or

 distribution which would result in any one or more of the following events, (hereinafter

 the ‘Disqualifying Events’):

        {¶30} “(a) The disqualification of an election made on behalf of my Estate to

 have any part of the trust property treated as ‘Qualified Terminable Interest Property’

 (as defined within Section 2056(b)(7) of the Internal Revenue Code of 1986 or O.R.C.

 §5731.15(B), as amended) for the purpose of qualifying for the Federal or state

 transfer tax marital deduction;

        {¶31} “(b) The disqualification of all or any part of any Trust for purposes of the

 Federal, Ohio, or other jurisdiction’s estate tax marital deduction; or,
Stark County App. Case No. 2012 CA 00144                                            11


        {¶32} “(c) The disqualification of a QDOT election made on behalf of my

 estate, under IRC Section 2056A(d).”

        {¶33} However, as noted by appellee, because Velia Armogida was

 predeceased by her husband, her Executor could not make a QTIP election. Her

 Trustee, as noted by appellee, “has no power to change and/or modify the QTIP

 election made in the Estate of James V. Armogida.”

        {¶34} Based on the foregoing, appellant’s five assignments of error are

 overruled.

        {¶35} Accordingly, the judgment of the Stark County Probate Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES




JAE/d1017
[Cite as In re Armogida, 2013-Ohio-195.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



IN RE: ESTATE OF VELIA ARMOGIDA,              :
DECEASED                                      :
                                              :
                                              :
                                              :
                                              :
                                              :       JUDGMENT ENTRY
                                              :
                                              :
                                              :
                                              :       CASE NO. 2012 CA 00144




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Probate Court is affirmed. Costs assessed to appellant.




                                                  _________________________________


                                                  _________________________________


                                                  _________________________________

                                                               JUDGES
