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surviving spouse has a qualifying income interest for
life"; if so, then an applicable election may be made
with respect to such property. Compare Estate of
Tompkins v. Commissioner, 68 T.C. 912 (1977). Whether
the surviving spouse has an income interest for life in
the property is independent of, and not dependent upon,
the requirement that an election be made with respect
to that property. If the surviving spouse does not
have an income interest for life in the trust, then the
election to treat the trust as a QTIP trust is
ineffective. [Id. at 337.]
In Estate of Robertson v. Commissioner, supra at 689, the
taxpayer attempted to distinguish the facts of that case from
those of Estate of Clayton. In Estate of Robertson, the taxpayer
argued that the executor was required to make the QTIP election
and, thus, did not have the power to appoint the property to
anyone other than the surviving spouse. We held to the contrary,
concluding that the executor had the power to appoint the
property to someone other than the surviving spouse and that
Estate of Clayton was controlling.
Preliminarily, this Court stated:
Section 2056(b)(7)(B)(i) defines "qualified
terminable interest property" as property (1) which
passes from the decedent, (2) in which the surviving
spouse has a "qualifying income interest for life", and
(3) for which an election has been made. [Estate of
Robertson v. Commissioner, supra at 684; emphasis
added; fn. ref. omitted.4]
4
Item (3) in the above quotation, however, is an imprecise
paraphrase of and not the actual statutory language used in sec.
2056(b)(7)(B)(i)(III). In Estate of Robertson v. Commissioner,
98 T.C. 678 (1992), revd. 15 F.3d 779 (8th Cir. 1994), this Court
addressed sec. 2056(b)(7)(B)(i)(II), the "qualifying income
interest for life" requirement, and did not undertake to construe
(continued...)
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