Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 12

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          Sixth Circuit, which reversed our decision in Estate of Spencer             
          v. Commissioner, supra.  The Sixth Circuit, however, applied a              
          rationale somewhat different from that applied by the Fifth                 
          Circuit.                                                                    
               The Tax Court, in those opinions, held that the surviving              
          spouse did not have a qualifying income interest for life because           
          the passage of an income interest in the property to the                    
          surviving spouse was contingent upon the executor’s QTIP election           
          as to such property and was therefore subject to the executor's             
          power to appoint the property to someone other than the surviving           
          spouse.  Accordingly, the Tax Court concluded that the property             
          did not meet the requirements of section 2056(b)(7)(B)(ii)(II),             
          that the surviving spouse did not have a "qualifying income                 
          interest for life", and that the property therefore was not QTIP.           
          Estate of Robertson v. Commissioner, supra; Estate of Clayton v.            
          Commissioner, supra; Estate of Spencer v. Commissioner, supra.              
               In Estate of Clayton v. Commissioner, supra, the taxpayer              
          argued that, by definition, an interest in property is QTIP only            
          if the election is made, and that, once the election is made, the           
          surviving spouse has a qualifying income interest for life,                 
          effective as of the date of the decedent's death.  In response,             
          we stated:                                                                  
                    An election, by definition, is necessary to insure                
               that the property is qualified terminable interest                     
               property.  The essence of section 2056(b)(7)(B)(i),                    
               however, is that a terminable interest is deductible                   
               only if it is an interest in property "in which the                    




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