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Economic Recovery Tax Act of 1981, Pub. L. 97-34, sec. 403(d), 95
Stat. 172, 302, allows a marital deduction for "qualified
terminable interest property". Section 2056(b)(7) allows a
decedent to pass to the decedent’s surviving spouse an interest
in property for the
surviving spouse's lifetime without the decedent’s losing the
ability to control the disposition of such property upon the
death of the surviving spouse.
The facts in the instant case fall within this Court's
holding in Estate of Clayton v. Commissioner, 97 T.C. 327 (1991),
revd. 976 F.2d 1486 (5th Cir. 1992). After our opinion in Estate
of Clayton was issued, but before it was reversed by the Fifth
Circuit, we decided Estate of Robertson v. Commissioner, 98 T.C.
678 (1992), revd. 15 F.3d 779 (8th Cir. 1994), and Estate of
Spencer v. Commissioner, T.C. Memo. 1992-579, revd. 43 F.3d 226
(6th Cir. 1995), in both of which we followed our holding in
Estate of Clayton. Subsequently, those decisions were reversed,
first by the Fifth Circuit, which reversed our decision in Estate
of Clayton v. Commissioner, supra, then by the Eighth Circuit,
which, following the Fifth Circuit, reversed our decision in
Estate of Robertson v. Commissioner, supra, and finally by the
(...continued)
(v) Election.--An election under this paragraph with
respect to any property shall be made by the executor on the
return of tax imposed by section 2001. Such an election,
once made, shall be irrevocable.
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