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In reversing this Court, the appellate courts focused upon that
language and held that one of the three essential elements in the
definition of QTIP is that it be property for which an election
has been made. Estate of Spencer v. Commissioner, 43 F.3d at
231; Estate of Robertson v. Commissioner, 15 F.3d at 783; Estate
of Clayton v. Commissioner, 976 F.2d at 1499.
The opinions of the Courts of Appeals, however, diverge in
one respect. The Court of Appeals for the Fifth Circuit held
that the effect of the QTIP election is retroactive to the
instant of the decedent's death. Estate of Clayton v.
Commissioner, 976 F.2d at 1495, 1500. The Court of Appeals for
the Sixth Circuit rejected what it characterized as the legal
fiction of retroactivity created by the Fifth Circuit. Estate of
Spencer v. Commissioner, 43 F.3d at 234. Instead, the Sixth
Circuit held that the date for determining whether property
qualifies for the QTIP election is the date the QTIP election is
made. Id. at 232. In holding that the relevant date for the
determination is the date the QTIP election is made, the Sixth
Circuit rejected the Commissioner’s argument that Jackson v.
United States, 376 U.S. 503 (1964), requires a contrary holding.
The Sixth Circuit stated:
Jackson is readily distinguishable from this case
and not in point. In Jackson, after her husband’s
death, a widow received a court-ordered temporary
(...continued)
sec. 2056(b)(7)(B)(i)(III), the election requirement.
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