Estate of Harriet R. Mellinger, Deceased, Hugh V. Hunter and Wells Fargo Bank, Co-Executors - Page 12




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          Regs.  Section 2044(a) includes in the gross estate the value of            
          property in which the decedent had a qualified income interest              
          for life and for which a marital deduction was allowed to the               
          estate of a predeceased spouse under section 2056(b)(7) (QTIP               
          property).  Accordingly, at the death of the second spouse, QTIP            
          property is taxed as part of the surviving spouse's estate.                 
          Sec. 2044(c).                                                               
               Property includable in the gross estate is generally                   
          included at its fair market value on the date of a decedent's               
          death.  Sec. 2031(a); sec. 20.2031-1(b), Estate Tax Regs.  Fair             
          market value is defined as the price that a willing buyer would             
          pay a willing seller, both persons having reasonable knowledge of           
          all of the relevant facts and neither person being under a                  
          compulsion to buy or sell.  United States v. Cartwright, 411 U.S.           
          546, 551 (1973); sec. 20.2031-1(b), Estate Tax Regs.  The willing           
          buyer and the willing seller are hypothetical persons, rather               
          than specific individuals or entities, and the individual                   
          characteristics of these hypothetical persons are not necessarily           
          the same as the individual characteristics of the actual seller             
          or the actual buyer.  Propstra v. United States, 680 F.2d 1248,             
          1252 (9th Cir. 1982).  The issue in this case is whether FOH                
          shares in the Harriett trust should be aggregated with FOH shares           
          in the QTIP trust for purposes of ascertaining the fair market              
          value of property passing from decedent.                                    





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