Internal Revenue Service
Revenue Ruling

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 Rev. Rul. 72-53

1972-1 C.B. 198

IRS Headnote

The presumptive date of death of a member of the uniformed service presumed dead after missing in action as determined under 37 U.S.C. 555 will be used for Federal income tax purposes unless the actual date of death is reliably established; I.T. 3750 and I.T. 3771 superseded.

Full Text

Rev. Rul. 72-53 /1/

The purpose of this Revenue Ruling is to update and restate, under the current statute and regulations, the positions set forth in I.T. 3750 and I.T. 3771, C.B. 1945, 126 and 194, respectively.

The questions presented relate to the date of death to be used for Federal income tax purposes in the case of members of the uniformed services who are presumed dead after having been reported missing in action.

A and B, members of the uniformed services of the United States on active duty, were reported in a missing status as of September 29, 1968. In the case of A, a finding of death was made based on the circumstances of his case, and September 30, 1969 (the day after the day on which the 12-month period of his missing status ended) was used by the military authorities as the presumptive date of his death. The circumstances of B's case indicated to the military authorities that he could reasonably be presumed to be living, and he was therefore carried as missing on the records of the Department of Defense until June 15, 1971. On that date, his widow was advised that B had died on October 15, 1968, while a prisoner of war, but that for the purpose of accounting he would be deemed to have died as of June 15, 1971.

The Federal law relating to payments to missing persons (originally enacted as Public Law 490, Seventy-seventh Congress, second session, approved March 7, 1942 (56 Stat. 143)), as amended, was added to the United States Code by the Act of September 6, 1966, as sections 551-558 of Title 37, pertinent portions of which are set out below.

Section 552. Pay and allowances; continuance while in a missing status; limitations

(a) A member of a uniformed service who is on active duty or performing inactive-duty training, and who is in a missing status, is, for the period he is in that status, entitled to receive or have credited to his account the same pay and allowances, as defined in this chapter, to which he was entitled at the beginning of that period or may thereafter become entitled. * * *

(b) The expiration of a member's term of service while he is in a missing status does not end his entitlement to pay and allowances under subsection (a) of this section. Notwithstanding the death of a member while in a missing status, entitlement to pay and allowances under subsection (a) of this section ends on the date--

(1) the Secretary concerned receives evidence that the member is dead; or

(2) that his death is prescribed or determined under section 555 of this title.

* * * * *

Section 553. Allotments; continuance, suspension, initiation, resumption, or increase while in a missing status; limitations

(a) Notwithstanding the end of the period for which it was made, an allotment, including one for the purchase of United States savings bonds, made by a member of a uniformed service before he was in a missing status may be continued for the period he is entitled to pay and allowances under section 552 of this title.

* * * * *

Section 555. Secretarial review

(a) When a member of a uniformed service entitled to pay and allowances under section 552 of this title has been in a missing status, and the official report of his death or of the circumstances of his absence has not been received by the Secretary concerned, he shall, before the end of a 12-month period in that status, have the case fully reviewed. After that review and the end of the 12-month period in a missing status, or after a later review which shall be made when warranted by information received or other circumstances, the Secretary concerned, or his designee, may--

(1) if the member can reasonably be presumed to be living, direct a continuance of his missing status; or

(2) make a finding of death.

(b) When a finding of death is made under subsection (a) of this section, it shall include the date death is presumed to have occurred for the purpose of--

(1) ending the crediting of pay and allowances;

(2) settlement of accounts; and

(3) payment of death gratuities.

That date is--

(A) the day after the day on which the 12-month period in a missing status ends; or

(B) if the missing status has been continued under subsection (a) of this section, the day determined by the Secretary concerned, or his designee.

* * * * *

Public Law 490, which was enacted in 1942 to provide for payment of pay and allowances of missing persons for a limited period not to extend more than 12 months beyond the date on which the person was first reported as missing or missing in action, also authorized a finding of death of such person upon expiration of that period unless affirmative information to the contrary was received. When it became apparent later that year that the enemy countries were not furnishing information regarding prisoners of war as required by the Geneva Convention, this law was amended by Public Law 848, which permitted the department concerned to direct a continuance of the missing status of such a person and the payment of his pay and allowances after the expiration of the 12-month period, if he could reasonably be presumed to be living.

Generally, a finding of presumptive death pursuant to 37 U.S.C. 555 is for the purposes of termination of crediting pay and allowances, settlement of accounts, and payment of death gratuities. Such a finding of death was also designed to aid other departments or agencies of the Federal Government in those cases in which the question of death is pertinent. See House Report 2723, Seventy-seventh Congress, which accompanied Public Law 848, wherein it is stated "The amendments to the Missing Persons Act were also designed to aid various Federal agencies * * * in determining a reasonable date on which rights shall accrue, based on the finding of the missing man's death."

However, the presumptive date of death when determined under the provisions of 37 U.S.C. 555 is regarded as conclusive only for the purposes for which Public Law 490 was enacted, or where Congress has by collateral legislation made it conclusive for other purposes. No such collateral legislation has been adopted by Congress in respect of Federal income tax laws.

Accordingly, in the administration of the Federal income tax laws, the Internal Revenue Service will not recognize the presumptive date of death where the actual date of death of a taxpayer is reliably established. However, where the actual date of death is not reliably established, the presumptive date of death will be adopted by the Service.

Thus, in the case of A, where the actual date of death was not reliably established, the presumptive date of death determined pursuant to 37 U.S.C. 555 and used in the certificate of presumptive death issued in his case is considered the date of his death for Federal income tax purposes.

However, in the case of B, where the actual date of death was known, the actual date, and not the presumptive date of death as determined pursuant to 37 U.S.C. 555, is considered the date of his death for Federal income tax purposes.

I.T. 3750 and I.T. 3771 are hereby superseded, since the positions stated therein are restated under the current law in this Revenue Ruling.

/1/ Prepared pursuant to Rev. Proc. 67-6, C.B. 1967-1, 576.