REVISED OPINION - July 7, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30385

_____________________

SAMMIE BARMAN DELAUNE, Estate; DENISE

LOVELESS, Co-Executors and Transferees

of the Estate of Sammie Barman

Delaune; MAE ACY AMEDEE, Co-Executors

and Transferees of Estate of

Sammie Barman Delaune; WILLIAM R.

SMITH, JR., Transferees of the Estate

of Sammie Barman Delaune;

PHYLLIS ROBIRA ZAPP, Transferees of

the Estate of Sammie Barman Delaune;

BERTHA THOMAS, Transferees of the

Estate of Sammie Barman Delaune;

JANE LEE VAN REENEN, Transferees of

the Estate of Sammie Barman Delaune;

JOYCE B. METCALF, Transferees of the

Estate of Sammie Barman Delaune;

PEGGY ANN GEILER, Transferees of the

Estate of Sammie Barman Delaune;

SAMUEL BUCKMASTER, JR., Transferees

of the Estate of Sammie Barman Delaune,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Middle District of Louisiana

_________________________________________________________________ June 29, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.2

E. GRADY JOLLY, Circuit Judge:

This case will demonstrate how, under the Louisiana Law Civil,

the past is not dead; how the past will not die; and how, indeed,

the past is not even past. But first, let us say that this appeal

arises from the district court’s denial of an estate tax refund to

the appell ants, the estate and certain heirs of Sammie Barman

Delaune. The dispute primarily involves the purported renunciation

of a Louisiana succession, which both the Commissioner of Internal

Revenue and the district court found to be inadequate as a matter

of federal and Louisiana law. In particular, the district court

held the renunciation to be invalid under Louisiana law because the

Louisiana Civil Code plainly does not provide for the renunciation

of a succession by the heirs of a dead heir on her behalf. In this

case, however, the Law Civil will not let us stop with a plain

reading of the current Code. Because, under the Law Civil, the

Code Napoleon of 1804 adds clarity to the work of Louisiana’s

subsequent Digesters and Redactors, and hence to the Code we read

today, we hold that Lou isiana law does in fact provide for the

renunciation of a succession by the heirs of an heir, and therefore

find no state law defect in the renunciation at issue. Because we

further hold that the renunciation was not otherwise defective as

a matter of federal law, we reverse the judgment of the district

court.3 I

The relevant facts are undisputed. Joseph “Jack” Delaune died

on May 31, 1986. Under his will, his entire estate, with the

exception of $3,000 in special bequests, was devised to his wife,

Sammie.

For some time prior to Jack’s death, Jack and Sammie had been

living in a nursing home. Jack’s brother, William Delaune, had

been handling Jack’s affairs under a power of attorney, and he paid

for Jack and Sammie’s expenses by writing checks out of an account

that belonged to the couple as undivided community property. After

Jack died, William Delaune continued to pay Sammie’s expenses out

of this account, and replenished it on one occasion with $100,000

drawn from another community property account. During this time,

the income from Jack’s estate continued to accumulate as it had

done before, which is t o say that it went into the community

property accounts. It is undisputed that the expenses incurred by

Sammie after Jack’s death were less than the income from her

portion of the community property.

Sammie’s will was a mirror image of Jack’s, and devised her

entire estate to him, with the exception of $3,000 in special

bequests. Because Jack had predeceased Sammie, this devise to him

had lapsed, and, unless something were done, their combined

estates, with the exception of $6,000, would pass to Sammie’s heirs1 William Shakespeare, Hamlet , act 5 sc. 2.

4 by intestacy when she died. As Jack had a separate line of heirs

from Sammie, this was not a good outcome, both as a matter of Jack

and Sammie’ s expressed desires for their heirs, and from the

perspective of a long and contentious probate fight.

On January 14, 1987, Sammie met with attorneys to discuss her

estate planning o ptions. Among other things, Sammie’s attorneys

proposed redrafting her will to provide a bequest to Jack’s heirs

or executing a renunciation of some portion of the bequest she had

received from Jack, so that it would pass immediately to Jack’s

heirs by intestacy. Sammie’s attorneys pointed out that the latter

option would be much better from a tax perspective, as it would

allow the property to go to Jack’s heirs with only one level of

estate tax (Jack -Tax-> Jack’s heirs) as opposed to two (Jack -Tax-

> Sammie -Tax-> Jack’s heirs).

Based on the tax advantages, Sammie decided to go with the

renunciation plan, and directed her attorneys to return when they

had dra wn up the appropriate papers. The Fell Sergeant 1 who

commands our last days waits not for the orderlies, however, and

before the renunciation could be comple ted and executed, Sammie

lapsed into a coma. She died on January 26.5

Despite the medical evidence to the contrary, William Delaune

remained convinced that Sammie could be r eanimated for a limited

amount of post-hoc estate planning. On February 6, acting in his

capacity as an heir of Jack, he filed a petition in Louisiana state

court for a Rule to Show Cause why the aborted renunciation should

not be given effect. He contended, essentially, that Sammie’s

decision to make a renunciation before she died created a legally

enforceable “natural” obligation in favor of Jack’s heirs that the

court was bound to recognize.

On February 23, a meeting was held with a number of the

attorneys representing various of the interested parties and heirs.

They discussed, among other things, the legality of a renunciation

made on Sammie’s behalf, and agreed on a plan for achieving a more

“ equitable” distribution of the combined successions to the two

lines of heirs.

On February 27, a hearing was held on the Rule to Show Cause.

At that hearing, an agreed judgment was signed by all interested

parties ( other than Sammie’s estate) and approved by the probate

judge. Under the judgment, Sammie’s heirs purported to renounce,

in her name and on her behalf, a portion of Jack’s succession equal

to two-sevenths of the combined estates.

Sammi e’s estate filed an estate tax return in which the

“renounced” portion of Jack’s succession was excluded fro m her6

gross estate, on the basis that there had been a qualified

disclaimer pursuant to I.R.C. § 2518. After an audit, the

Commissioner took issue w ith this exclusion, and declared a

deficiency of $146,728 to cover the estate tax that he felt should

have been paid on the purp ortedly renounced portion of Jack’s

succession. As the assets in Sammie’s estate had been already

largely distributed, the Commissioner sent notices of trans feree

liability to Sammie’s heirs, and, on November 28, 1990, the estate

and heirs paid the deficiency in full.

II

After exhausting their administrative remedies, on April 26,

1994, Sammie’s estate and nine of her fourteen heirs (the

“Delaunes”) filed suit in the Federal District Court for the Middle

District of Louisiana seeking a r efund of the entire deficiency.

Eventually, this claim went to trial before District Judge Parker.

At trial, the Delaunes argued that the renunciation had been a

qualified disclaimer under I.R.C. § 2518, such that the renounced

portion o f Jack’s succession was properly excluded from Sammie’s

gross estate. In the alternative, they asserted that the natural

obligat ion to renounce arising from Sammie’s pre-death decision

constituted a claim against her estate for the amount of the

renunciation, and that this amount was therefore also excludable

pursuant to I.R.C. § 2053(a)(3).7

The Commissioner argued that the r enunciation was not a

qualified disclaimer under § 2518 because Louisiana law does not

allow for renunciation by the heirs of an heir, and because Sammie

had accepted the benefits of Jack’s succession for purposes of

§ 2518(b)(3) before the renunciation wa s made. The Commissioner

also contended that the natural obligation was not a claim against

the estate under § 2053 because it was not enforceable as a matter

of Louisiana law and because it was not contracted for in exchange

for an adequate consideration in money or money’s worth, as

required by § 2053(c)(1). Finally, the Commissioner also argued

that, even if a refund were due, th e nine heirs and estate could

only claim the amounts that they had actually paid, not the entire

deficiency.

On March 7, 1997, Judge Parker issued his findings of fact and

conclusions of law. He ruled that § 2518(b)(4) implicitly requires

that a disclaimer be valid under state law before it can be a

qualified disclaimer for federal estate tax purposes, as that

section provides that the interest at issue must pass without any

direction from the disclaimant. Further, Judge Parker held that

the renunciation at issue was not valid under Louisiana law. He

based this conclusion principally on La. Civ. Code art. 1007, which

expressly allows the heirs of an heir to a ccept a succession on

behalf of the dead heir. Because this provision contains no8

mention of renunciation, Judge Parker reasoned that renunciation by

the heirs of an heir was prohibited by implication. He therefore

concluded that the attempted renunciation in this case was not a

qualified disclaimer for federal estate ta x purposes. In the

alternative, Judge Parker ruled that the attempted renunciation was

also not a qualified disclaimer because Sammie had previously

accepted the benefits of Jack’s succession in the form of the

nursing home expense payments and interest accrual. Finally, Judge

Parker also held that Sammie’s alleged decision to renounce did not

create an enforceable natural obligation as a matter of Louisiana

law, and was therefore not an excludable claim against her estate

for pur poses of § 2053. On the basis of these holdings, Judge

Parker sustained the Commissioner’s declaration of deficiencies and

denied the Delaunes’ request for a refund. From this final

judgment the Delaunes timely appeal.

III

We review the d ecision of a district court in a tax matter

applying the same standards used in reviewing a decision of the Tax

Court. E state of McLendon v. Commissioner of Internal Revenue

, 135

F.3d 10 17, 1021 (5th Cir. 1998). Findings of fact are accepted

unless clearly erroneous; legal conclusions are re considered de

novo. B allard v. United States

, 17 F.3d 116, 118 (5th Cir. 1994).

IV9

As in the district court, on appeal the Delaunes urge two

alternative theories to justify the exclu sion of the “renounced”

portion of Jack’s succession fro m Sammie’s estate. First, they

argue that the renunciation was a qualified disclaimer excludable

under § 2518. Second, they assert that Sammie’s decision to make

the renunciation gave rise to a natural obligation under Louisiana

law that is excludable under § 2053. Based on the clear terms of

the federal statute and regulations, and the history of the

relevant Louisiana code provision, we hold that the renunciation in

question was a qualified disclaimer for purposes of § 2518.

Because this is sufficient to justify the Delaunes’ exclusion, we

need not reach the merits of their alternative argument.10 A

In g eneral, § 2518 allows an heir to exclude from her own

gross estate any interest in an inheritance that she disclaims with

a “qualified ” disclaimer. There are various requirements for a

disclaimer to be qualified. Among other things, the disclaimer

must be made before the heir has “accepted the interest or any of

its benefits.” § 2581(b)(3). In addition, it must also be the

case that “as a result of the refusal, the interest passes without

any direction on the part of the person making the disclaimer.”

§ 2518(b)(4). S ee also Estate of Monroe v. Commissioner of

Internal Revenue , 124 F.3d 699, 703 & n.1 (5th Cir. 1997).

The Commissioner argues that the renunciation in this case was

not a qualified disclaimer because it was not valid to pass an

interest under Louisiana law, as impl icitly required by

§ 2518(b)(4), and because it was not made before Sammie had

accepted the benefits of the succession, as explicitly required by

§ 2518(b)(3). There is no merit to either argument.

B

T he Commissioner first contends that the February 2 7

renunciation was not qualified for purposes of § 2518 because it

was not valid to pass an interest under Louisiana law. As we2 The Commissioner has not urged that the February 27

renunciation was defective as a matter of Louisiana law on any

other basis--as, for example, a form fault--and we generally do not

consider arguments that have not been raised by the parties on

appeal. U nited States ex rel. Thompson v. Columbia/HCA Healthcare

Corp.

, 125 F.3d 899, 903 n.3 (5th Cir. 1998). That said, although

the form of the February 27 transaction was admittedly not in

strict compliance with the procedural requirements of the Louisiana

Civil Code, see La. Civ. Code art. 1017 (requiring that

renunciation be made by public act before a notary, in presence of

two witnesses), it nonetheless appears to fall within the doctrine

of judicial renunciation that has long been recognized by the

Louisiana Supreme Court. S ee Succession of Tertrou

, 47 So.2d 681,

685 (La. 1950) (succession may be renounced by judicial declaration

in addition to the procedures listed in article 1017) (citing Union

National Bank v. Choppin

, 46 La. Ann. 629 (1894), and C arter v.

Fowler , 33 La. Ann. 100 (1881)).

11 understand his argument, 2 the Commissioner reaches this conclusion

based solely on his perception that Louisiana law does not allow

the heirs of a dead heir to renounce on her behalf, as was

attempted in this case. We disagree with this construction of the

relevant Louisiana code provision, and therefore hold that the

renunciation in question was a valid one.

(1)

As an initial matter, we do agree with the Commissioner that

state law validity is a necessary prerequisite for a disclaimer to

be qualified under § 2518 in the circumstances of this ca se. As

the district court also concluded, the clear terms of § 2518(b)(4)

necessarily require that the disclaimer itself be valid to pass an

interest under state law, because only in such a situation can it3 Of course, the latter case would nonetheless constitute a

qualified disclaimer under § 251 8(c)(3), as that section exempts

the disclaimer itself from the rigors of § 2518(b)(1) & (4) where

it is accompanied or replaced by an effective written transfer of

the interest to the party or parties who would have received it had

a qual ified disclaimer been made. The clear language and

legislative history of § 2518(c)(3) stron gly suggest that it was

enacted specifically to address the issue in this case, i.e., the

fate of an otherwise unobjectionable disclaimer that is potentially

invalid under state law. S ee, e.g.

, S. Rep. No. 97-144, at 142

(1981), reprinted in 1981 U.S.C.C.A.N. 241-42 (provision designed

to overcome § 2518(b)(4)’s implicit requirement that disclaimer be

valid to pass interest under state law). Read this way,

§ 2518(c)(3) is also well in kee ping with the overall point of

§ 2518, which was, as both parties to this case agree, to bring a

certain degree of federal uniformity to an area of taxation that

had previously been entirely subject to the whims of state law.

See H.R. Rep. No. 94-1380, at 65-68 (1976), reprinted in 1976

U.S.C.C.A.N. 3419-22.

Despite its obvious potential relevance, § 2518(c)(3) is not

implicated in this case because the Delaunes’ attorneys failed to

attempt any transfer of the interest in question apart from the

disclaimer itself. Had they bothered to argue the issue on appeal

(which, perhaps unsurprisingly, they also did not, see note 2,

supra), we would have been forced to agree with the only other

federal court to consider the issue that § 2518(c)(3) requires, at

a minimum, some attempt at a valid written transfer to named

individuals. See Estate of Dancy v. Commissioner of Internal

Revenue

, 89 T.C. 550, 562 (1987), rev’d on other grounds

, 872 F.2d

84 (4th Cir. 1989).

12 be said that the interest passes “as a result of the refusal” and

“without any direction on the part of the person making the

disclaimer.” Thus, for example, a naked invalid disclaimer would

be insufficient, as it would not pass an interest. Similarly, an

invalid disclaimer coupled with a valid donative transf er would

also be insufficient, as the interest would not pass “without any

direction on the part of the person making the disclaimer.” 3 We4 See DePaoli v. Commissioner of Internal Revenue , 62 F.3d

1259, 1261-62 (10th Cir. 1995); Estate of Goree v. Commissioner of

Internal Revenue

, 1994 WL 37924 6 (T.C.); E state of Bennett v.

Commissioner of Internal Revenue

, 100 T.C. 42, 66 (1993); Dancy

, 89

T. C. at 554. The only arguably contrary decision reached by any

court would appear to be In re Witz

, 406 N.Y.S.2d 671, 673 (N.Y.

Sup. Ct. 1978).

13 note in passing that this construction of § 2518(b)(4) accords with

that reached by all of the other federal courts to have considered

the issue. 4

As a further predicate, we also agree with the Commissioner

that we are not bound on the state law validity question in this

case by the mere judgment entered by the Louisiana probate court.

In Commissioner of Internal Revenue v. Estate of Bosch

, 387 U.S.

456, 462-65 (1967), the Supreme Court laid down an essentially

Erie -based approach to the analysis of state court adjudications of

state law questions that have occurred in prior aspects of a

federal tax case. Brown v. United States , 890 F.2d 1329, 1341-42

(5th Cir. 1989); cf. Erie R.R. Co. v. Tompkins

, 304 U.S. 54 (1938).

Under this circuit’s longstanding interpretation of the rather

ambivalent majority opinion in Bosch

, “unless the highest court in

the state has spoken to the issue, a federal court is to make its

own inquiry into state la w.” B rown

, 890 F.2d at 1342. In

conducting this inquiry, of course, the lower state court’s ruling

will have some relevance. I d. That relevance will be limited,5 Nemo est hæres viventis ; no one is heir to the living. Co.

Litt. 8 (that is, Sir Edward Coke, Commentary upon Littleton 8

(Charles Butler ed., Legal Classics Library 18th ed. 1985) (1628)).

14 however, and “‘will vary, depending on the particular tax statute

involved as well as the nature of the state proceeding that

p roduced the judgment.’” E state of Warren v. Commissioner of

Internal Revenue , 981 F.2d 776, 781 (5th Cir. 1993) (Garwood, J.)

(quoting Brown

, 890 F.2d at 1342). Where, as here, the state court

adjudication arises out of a manifestly non-adversarial proceeding

and the relevant federal tax statute indicates no preferenc e for

the sanctity of the state court’s ruling, we need accord no

particular deference, and must conduct our own investigation of the

relevant state law as declared by the state’s highest court. See

Brown , 890 F.2d at 1342.

(2)

Turning to that question, we begin our inquiry with La. Civ.

Code art. 1007. Under that article, it is clear that “[n]ot only

the person who is entitled to an inheritance may accept it, but if

he dies before having expressly or tacitly accepted or rejected it,

his heir shall have a right to accept it under him.” As the

district court correctly surmised, the core question posed by this

case is whether article 1007 also allows the heirs of a dead 5 heir6 As Judge Wisdom noted, the civil law interpretive process is

in some respects fundamentally different from the common law

process with which we are generally familiar. This is particularly

so where the interpretation is of a civil code:

“The prob lem may be controlled by a code article.

Controversy then will center about the interpretation of

this article. For this there is an elaborate apparatus,

the classic account of which is given by Geny, and by

Savigny in the entire first volume of his System. The

logical interdependence of the various texts, ethical

notions, systematic considerations, contextual

influences, historica l factors, consequential effects,

and the like, receive consideration. The important thing

is the elaborate effort to ascertain the genuine

significance of the text. In this there is no mere

reliance upon the holdings of prior decisions. Indeed,

the code civil expressly forbids decisions to be made so

as to form a general rule of law, and anyone who examines

Dalloz and Sirey will not find reference to authoritative

materials other than the code texts. There is no stare

decisis of interpretation. Furthermore, the

interpretativ e process is not confined to the judges

a lone. The chief reliance is rather upon the

theoretician as he has indicated his opinions in

doctrinal writing. Interpretation of statutory texts is

not the esoteric job of judges. It is an intellectual

process in which law teachers have played a greater part

15 to renounce on her behalf, as was attempted here. Based on the

history and logic of the statute, we conclude that it does.

At the outset, we note that this question has not been

squarely addressed by the Louisiana Supreme Court. As such, we

must rely primarily on the history and lineage of article 1007, its

construction by commentators, and its place in the statutory

framework. S ee Shelp v. National Sur. Corp. , 333 F.2d 431, 435

n.13 (5th Cir. 1964) (Wisdom, J.). 6than judges.”

Shelp

, 333 F.2d at 435 n.13 (quoting Franklin, The Historic

Function of the American Law Institute: Restatement as Transitional

to Codification , 47 Harv. L. Rev. 1367, 1377 (1934)).

7 The Code of 1825 was published i n both a French and an

English version, but it wa s originally drafted in French alone.

See Shelp , 333 F.2d at 436-37.

8 “ Non seulement celui qui est appelé à une succession, peut

l’acce pter, mais s’il est mort, avant que de l’avoir acceptée

expressément ou tacite ment, ou l’avoir répudiée, ses héritiers

peuvent l’accepter de son chef. ”

9 “ Non-seu lement celui qui est appelé à une succession, peut

l’accepter, mais s’il est mort a vant que de s’être décidé sur le

parti de l’acceptation ou de la répudiation, les héritiers de cet

héritier peuvent, de leur chef, l’accepter. ”

10 Which was originally drafted in French as well. S ee Shelp

, 333 F.2d at 436-37.

16 Beginning with its history, we can readily see th at article

1007 of the current Louisiana Civil Code (of 1870) is an exact copy

of the English text of article 1001 of the Co de of 1825. 7 The

French text of article 1001, 8 in turn, is an almost exact copy of

article 84 9 of the first title of the third book of the Digest of

1808. 10 Like much of the Digest of 1808, article 84 was taken

directly from the French Code Napoleon of 1804. Under article 781

of the Code Napoleon, “[w]hen he to w hom a succession has fallen

has died without having repudiated it or without having accepted it

expressly or tacitly, his heirs may accept it or repudiate it under11 “ Lorsque celui à qui une succession est échue, est décédé

sans l’avoir répudiée ou sans l’avoir acceptée expressément ou

tacitement, ses héritiers peuvent l’accepter ou la répudier de son

chef. ”

17 his authority” 11 (emphasis added). Obviously, article 781 of the

Code Napoleon , unlike article 84 of the Digest of 1808 or its

successors, expressly allows the heirs of an heir to either accept

or renounce a succession on behalf of the dead heir, and thus would

allow the transaction attempted in this case. The question remains

what significance we should attach to this fact.

Under Louisiana law, it is well esta blished that the French

version of the Code of 1825 is contro lling as to articles with a

civilian heritage that have not been changed since that time.

Pickett v. RTS Helicopter

, 128 F.3d 925, 931 (5th Cir. 1997)

(citing Shelp

, 333 F.2d at 438-39). As we have seen, article 1007

of the current Louisiana Civil Code is an exact copy of the English

text of the civilian article 1001 of the Code of 1825, so the Shelp

rule applies in the resolution of this case.

As Judge Wisdom’s excellent discussion of Louisiana civil code

interpretation in Shelp teaches, however, the relevance of old and

somewhat hoary French law must go even farther in some instances.

“‘The very nature of a code requires that

. . . when an article

abstracts the preexisting law the earlier jurisprudence be

considered in cases not covered by the abstract.’” S help

, 333 F.2d12 As is evident from Durnford

, this relevance of pre-1825 law

remains despite the fact that the Louisiana legislature attempted

to repeal the earlier law on multiple occasions in 1825 and 1828.

See Shelp

, 333 F.2d at 435-36, 437; see also Moulin v. Monteleone

, 165 La. 169, 178-84 (1927) (holding that provisions of the Code of

1825 are still properly interpreted according to the legal

principles that prevailed in Louisiana preceding t he Code’s

adoptio n), overruled as to result by 9 to 5 Fashions, Inc. v.

Spurney , 538 So.2d 228, 234 (La. 1989) (Dennis, J.).

18 at 435 (quoting Dreyfous, Partial Defacement of Olographic Wills

,

1 5 Tul. L. Rev. 272, 273-74 (1941)). As the Louisiana Supreme

Court stated in deciding how to construe another article from the

Code of 1825 that had been taken, like article 1007, directly from

the Digest of 1808:

The re-printing of [the Digest of 1808], together with

the [1824] amendments, [in 1825] has induced some persons

to believe that the w hole code is to be taken as a new

enactment, but this is not correct.

. . . The article,

therefore, now under consideration, must be governed by

the rules which we have frequently applied to laws passed

antecedent to the constitution [of 1812].

Durnford v. Clark’s Estate

, 3 La. 199, 202 (1931); see also Flower

v. Griffith

, 6 Mart. (n.s.) 89 (La. 1827) (holding that the

omission in the Code of 1825 of certain articles from the Digest of

1808 did not constitute a repeal of those earlier articles). 12

In th is case, our investigation of article 1007’s statutory

predecessors leads us to the conclusion that when article 781 of

the Code Napoleon was taken into the Digest of 1808 and thence into

the Code of 1825, it was simply rephrased and abstracted, resulting13 Although the laws “in force” at the time were technically

those of Spain, not France, because France and Spain are both civil

law countries, and because the chief source of the Code of 1825 was

the Code Napoleon, “[t]he codes of Louisiana can be [best]

explained by assuming that the redactors concluded that in most

respects the law of Louisiana was the same as the law of France.”

Dreyfous, 15 Tul. L. Rev. at 274.

14 Our result is also bolstered by the fact that the one minor

difference in wording between the French text of article 1001 of

the Code of 1825 and that of article 84 of the Digest of 1808

suggests an express allowance for partial acceptances in the Digest

version. S ee note 9, supra (“ le parti de l’acceptat ion ou de la

répudiation ”).

19 in the current wording. This reworking resulted in a considerably

more streamlined sentence, but, out of inadvertence or a misguided

desire to avoid unnecessary verbiage at all costs, omitted the

final instance of “repudiate.” This is the only explanation that

makes any sense in the light of the fact that we can ascertain no

indication that the change in wordi ng was intended, desired, or

even authorized to materially alter the effect of article 781 of

the Code Napoleon. S ee Shelp

, 333 F.2d at 433 n.4 (noting that the

Di gest of 1808 was entitled “A Digest of the Civil Laws N ow in

Force in the Territory of O rleans with Additions and Amendments

Adapted to its Present System of Government” (emphasis added)). 13

For this reason, 14 we conclude that the entire substance of article

781 of the Code Napoleon was tran smitted into the Code of 1825,

including the final instance of “repudiate.” The gist of this

conclusion is that the current article 1007 must be read to allow15 This case, obviously, is governed by the prior law.

16 Article 955 did not make it into the final revision.

Beginning in 1999, the Louisiana Civil Code will apparently no

longer have any express provision concerning the renunciation o r

acceptance of succession rights by the heirs of an heir. One might

say that this development adds finality to a creeping 200 year

process of eroding the clarity from article 781 of the Code

Napoleon.

20 the heirs of an heir to either accept or renounce a succession on

behalf of the dead heir so long as the other requirements are met.

This historical reading of article 1007 accords with the

understanding of the principal commentators to have considered the

question. In 1997, Louisiana completed a comprehensive revision of

the l aw of successions and donations 1 5 that found its inspiration

in a proposal from the Louisiana Law Institute. Article 955 of the

proposal, which was destined to replace article 1007, 16 provided:

“If a successor dies without having accepted or renounced

succession rights, his right to accept or renounce is transmitted

to his successors.” Kerry J. Miller, Comment, T he New Forced

Heirship Law, its Implementing Legislation, and Major Substantive

P olicy Changes of the Louisiana State Law Institute’s Proposed

Comprehensive Revision of the Successions and Donations Laws , 71

Tul. L. Rev. 223, 285 (1996) (emphasis added). Under Miller’s

interpretation, “[p]roposed Article 955 reproduce[d] the substance

of current Civil Code Article 1007 which allows the transmission of21

a successor’s rights to his successors if he dies before accepting

or renouncing.” Id. at 254. Miller’s conclusion is identical to

that reache d by two treatise writers in reviewing an earlier

version of the same proposal. S ee 10 Frederick William Swaim, Jr.

and Kathryn Venturatos Lorio, Louisiana Civil Law Treatise § 7.12

at 161 & n.20 (West 1995).

Finally, the historical reading also accord s with common

sense. Succession rights are inherently a binary phenomenon in the

Louisiana statutory scheme; the y must either be accepted

(expressly, tacitly, or by presumption) or rejected (expressly

only). See La. Civ. Code art. 977. Just as the repudiation of a

succession wi ll not be presumed, s ee La. Civ. Code art. 1017, so

too can no one be compelled to accept, see La. Civ. Code art. 977.

In this context, it would be well-nigh meaningless to give an heir

a right to accept without an accompanying right to reject.

The only response that the Commissioner has of fered to this

analysis has been to suggest that, even if article 1007 is read to

contain an implicit right to renounce, that right should be

construed as a right to renounce the derivative succession coming

from the dead heir, not a right to renounce the succession going to

that heir on her behalf. The Commissioner bases this argument on

the current text of article 1007, which contains the fairly17 In the juridical context, “ de son chef ” = “under his right.”

Harper-Collins-Robert French~English English~French Dictionary at

117 (2d ed. 1990).

22 ambiguous language that “[the heir of an heir] shall have a right

to accept [the succession] under him ” (emphasis added).

Unfortunately for the Commissioner, his argument flies in the

face of the clear French text of article 1001 of the Code of 1825,

and is thus invalid under the core holding of Pickett and Shelp

.

As noted, the French te xt of article 1001 provides that, when an

heir die s before accepting or rejecting a succession, “ s es

héritiers peuvent l’accepter de son chef. ” Although this last

passage was originally translated as “his heirs shall have a right

to accept it u nder him

, ” it should more appropriately be read as

“his heirs may accept it under his authority .” 17 As noted, the core

holding of Pickett and Shelp makes this mor e correct translation

controlling, so there is no merit to the Commissioner’s alternate

theory.

Based on the foregoing histor y, commentators, and logic, we

hold that article 1007 does allow for the renunciation of a

succession by the heirs of an heir on her behalf. Article 84 of

the Digest of 1808 was clearly intended to reproduce all of the

substance of article 781 of the Code Napoleon, and the omission of

the final instance of “repudiate” was likely an inadvertent side23

effect of the streamlining of the sentence. Every commentator who

has considered the issue has apparently assumed this to be the

case, no doubt because it is the only interpretation that makes any

sense in the light of the statutory framework.

Because Louisiana l aw does allow for the renunciation of a

succession by the heirs of an heir on her behalf, the renunciation

in this case was valid to pass an interest under state law. The

d istrict court’s ruling that it was not was in error, and we

reverse accordingly.

C

Even conceding this point, however, the Commis sioner next

argues that the renunciation in this case was nonetheless not a

qualified disclaimer because Sammie Delaune had acc epted the

b enefits of Jack’s succession prior to her death. Based on the

Service’s own regulations and letter rulings, we find absolutely no

merit to this argument.

As noted, § 2518(b)(3) requires that the disclaimant not have

accepted the benefits of the interest in order for a disclaimer to

be qualified for federal es tate tax purposes. The Commissioner

argues that Sammie Delaune accepted the ben efits of Jack’s

succession by allowing her expenses to be paid out of a community

property account and by allowing the interest on the succession to

accumulate therein.18 An attribution we have some difficulty in swallowing, as

William Delaune does not appear to have had any legal authority to

act on Sammie’s behalf.

19 This is particularly so in the light of the fact that

Sammie’s expenses undisputedly never exceeded even her portion of

the income from the community’s property, and the fact that the

Commissioner has been consistently deferential towards withdrawals

from joint accounts in his own private letter rulings in this area.

See, e.g. , T.A.M. 86-19-002.

24 Under Treas. Reg. § 25.2518-2(d), “[a]cceptance [of benefits

for purposes of § 2518(b)(3)] is manifested by an affirmative act

which is consistent with ownership of the interest in property.”

See also Estate of Monroe

, 124 F.3d at 705. Even if William

Delaune’s actions in this case may be somehow attributed to

Sammie, 18 there seems little doubt that the instances cited by the

Commissioner do not constitute “affirmative act[s] consistent with

ownership.” Simply put, it was not “consistent with ownership” of

Jack’s succession for Sammie to pay her own expenses from funds in

a joint community property account to which she had an equal

right, 19 nor was it “an affirmative act” for Sammie passively to

“accept” routine interest accrual.

The Commissioner is not wholly unaware of the legally curious

nature of his position in the light of his own regulation, and he

attempted at oral argument to disavow its binding authority. As we

recently held in Estate of McLendon v. Commissioner of Internal

Revenue

, 135 F.3d 1017, 1024 (5th Cir. 1998), however, “the25

Commissioner will be held to his published rulings in areas where

t he law is unclear, and may not depart from them in individual

cases.” Although the issue in M cLendon concerned a revenue ruling,

its rule applies a fortiori in the case of a bona fide treasury

regulation, and the Commis sioner may not escape the effect of

Treas. Reg. § 25.2518-2(d) on the admittedly murky question posed

by this case. Indeed, we are a little perturbed that he would even

try.

Because we find that the Commissioner’s instances of purported

acceptance do not meet the “affirmative ownership act” standard

established in his own regulation, we conclude that Sammie had not

accepted the benefits of Jack’s succession prior to her death. In

the light of our earlier finding that the February 27 renunciation

was effective to pass an interest under Louisiana law, we therefore

conclude that it was a qualified disclaimer for federal estate tax

purposes, and that the declaration of deficiencies was in error.

D

Having held that the declaration of deficiencies was in error,

it only remains to be decided how much the Delaunes may recover in

this case. As noted, only the estate of Sammie Delaune and nine of

her fourteen heirs have sued for a refund. They request, however,

that the entire amount of the deficiency be remitted to their

custody.26

Under I.R.C. § 6402(a), a refund may only be obtained by the

taxpayer who made the overpayment. As other circuits have

construed this provision in the context of refund actions, it means

that standing is limited to the party or parties who have at least

arguably or derivatively made an actual overpayment, such that they

have a financial interest in the litigation. S ee Atlas Hotels,

Inc. v. United States , 1998 WL 154465, *2 (9th Cir. 1998); Estate

of Fink v. United States , 852 F.2d 153, 155 (6th Cir. 1988) (both

citing Bruce v. United States

, 759 F.2d 755, 758-59 (9th Cir.

1985)); cf. First National Bank of Fort Worth v. United States

, 633

F.2d 1168, 1171 (5th Cir. 1981) (quoting a dis trict court

predecessor to Bruce

, Scanlon v. United States

, 330 F. Supp. 269

(E.D. Mich. 1971), approvingly in a related context); Thomasville

Automotive Parts, Inc. v. United States , 609 F.2d 1136, 1137 (5th

Cir. 1980) (noting that § 6402(a) creates a right of recovery only

in the case of an overpayment).

We agree with our sister circuits on this point, and further

find that a necessary corollary to their rule is that any party’s

standing to seek a refund in a given case is limited to the amount

of his own overpayment. C f. United States v. Elam

, 112 F.3d 1036,

1038 (9th Cir. 1997) (“Spouses who file a joint return have

separate interests in any overpayment [recoverable under

§ 6402(a)], the interest of each depending upon his or her relative27

contribution to the overpaid tax.”) In this case, it is undisputed

t hat the parties before this court did not make payment on the

entire deficiency. Their recovery is therefore limited to the

amounts that they paid, which we find to be $75,994 in total.28 V

For the foregoing reasons, we REVERSE the judgment of the

district court and RENDER for the Delaunes in the amount of

$75,994.

REVERSED and RENDERED.