- 12 - 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 thePage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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