Estate of Melvine B. Atkinson - Page 12




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          death.5  Petitioner argues that, under this provision of the                
          regulation, the trust did not come into being until the date of             
          decedent’s death, and therefore no prior violation of the CRAT              
          requirements could disqualify the trust.  Petitioner’s position             
          overlooks that this provision of the regulation is inapplicable             
          to the trust involved here--an irrevocable trust established and            
          funded by decedent during her lifetime.  The application of this            
          provision of the regulation, as reflected in its terms and                  
          illustrated by the accompanying examples, see sec. 1.664-1(a)(6),           
          Income Tax Regs., is confined to testamentary trusts funded for             
          the first time after the grantor’s death.  In the present case,             
          the trust is deemed created at the earliest time that neither the           
          grantor nor any other person is treated as the owner of the                 
          entire trust.  See sec. 1.664-1(a)(4), Income Tax Regs.   Here,             


               5 Sec. 1.664-1(a)(5), Income Tax Regs., provides:                      
                    (5) Rules applicable to testamentary transfers--                  
                         (i) Deferral of annuity or unitrust amount.                  
                    Notwithstanding subparagraph (4) of this paragraph                
                    and �� 1.664-2 and 1.664-3, for purposes of                       
                    sections 2055 and 2016 a charitable remainder                     
                    trust shall be deemed created at the date of death                
                    of the decedent (even though the trust is not                     
                    funded until the end of a reasonable period of                    
                    administration or settlement) if the obligation to                
                    pay the annuity or unitrust amount with respect to                
                    the property passing in trust at the death of the                 
                    decedent begins as of the date of death of the                    
                    decedent, even though the requirement to pay such                 
                    amount is deferred in accordance with the rules                   
                    provided in this subparagraph.  * * *                             






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