134
Scalia, J., dissenting
date of death, the plurality concludes that whether a limitation is material, and the extent of any reduction in the marital deduction, are determined solely on the basis of the information available at the date of death—a position espoused by neither litigant, none of the amici, and none of the courts to have considered this issue since it arose some 35 years ago. The plurality appears to have been misled by its view that the estate tax demands symmetry: Since only anticipated income is included in the gross estate, only anticipated administration expenses can reduce the marital deduction. See ante, at 102, 106-109. The provisions of the estate tax clearly reject such a notion of symmetry and do not sharply discriminate between date-of-death and postmortem events insofar as the allowance of deductions for claims against and obligations of the estate are concerned. In this very case, for example, in calculating the taxable estate the executors deducted $506,989 of actual administration expenses pursuant to 26 U. S. C. § 2053(a)(2). App. to Pet. for Cert. 3a. The regulations governing such deductions provide that "[t]he amounts deductible . . . as 'administration expenses' . . . are limited to such expenses as are actually and necessarily, incurred in the administration of the decedent's estate," 26 CFR § 20.2053-3(a) (1996) (emphasis added), and expressly prohibit taking a deduction "upon the basis of a vague or uncertain estimate," § 20.2053-1(b)(3). Since such common administration expenses as litigation costs will be impossible to ascertain with any exactitude as of the date of death, the plurality's approach flatly contradicts the provisions of these regulations.2
The marital deduction itself is calculated on the basis of actual, rather than anticipated, expenditures from the marital bequest. The regulations governing 26 U. S. C. § 2056(b)
2 The plurality's reference to Ithaca Trust Co. v. United States, 279 U. S. 151 (1929), is unhelpful. That case holds that date-of-death valuation is applicable to bequeathed assets, not that it is applicable to claims and obligations that are to be satisfied out of those assets.
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