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One caveat to our holding is in order. Section 20.2056(b)-
7(d)(3), Estate Tax Regs.,5 provides that the marital deduction
is not available under the circumstances of the instant case.
Because the regulation is effective for estates of decedents
dying after March 1, 1994 (see section 20.2056(b)-10, Estate Tax
Regs.), it is not applicable to the instant case. Consequently,
we leave for another day the issue of the validity of that
regulation. Obviously, if the regulation were held to be valid,
there might be a different result for estates of decedents dying
after March 1, 1994.
To reflect the foregoing,
An appropriate order
will be issued.
Reviewed by the Court.
HAMBLEN, SWIFT, JACOBS, WRIGHT, RUWE, COLVIN, LARO, FOLEY,
and VASQUEZ, JJ., agree with this majority opinion.
5 Sec. 20.2056(b)-7(d)(3), Estate Tax Regs., provides as
follows:
(3) Contingent income interests. An income
interest granted for a term of years, or a life
estate subject to termination upon the occurrence of a
specified event (e.g., remarriage), is not a qualifying
income interest for life. In addition, an income
interest (or life estate) that is contingent upon the
executor’s election under section 2056(b)(7)(B)(v) is
not a qualifying income interest for life, regardless
of whether the election is actually made.
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