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SWIFT, J., concurring: I do not disagree with the decision
of the majority to accede to the rulings of the three Courts of
Appeals that have considered this issue. In light, however, of
respondent’s self-serving, interpretative, prospective-only
regulation on this issue at section 20.2056(b)-7(d)(3), Estate
Tax Regs. (promulgated in the midst of the rejection of
respondent’s position by the Courts of Appeals for the Fifth,
Sixth, and Eighth Circuits1), and in light of the many refund
courts that are not bound by our ruling herein, nor by the
rulings of the above three Courts of Appeals, further litigation
of this issue would appear inevitable.
As an alternative, therefore, to acceding to the extant
rulings of the Courts of Appeals, I would go further, and I would
reconsider our interpretation of the relevant QTIP provisions of
section 2056(b)(7)(B), as follows.
Having the benefit of the analyses set forth in the above
three Courts of Appeals rulings and the benefit of further
reflection that continuing litigation provides, I believe that we
erred in our prior opinions in Estate of Clayton v. Commissioner,
97 T.C. 327 (1991), revd. 976 F.2d 1486 (5th Cir. 1992); Estate
of Robertson v. Commissioner, 98 T.C. 678 (1992), revd. 15 F.3d
779 (8th Cir. 1994); and Estate of Spencer v. Commissioner, T.C.
1 See T.D. 8522, 1994-1 C.B. 236, 238, promulgated on Feb. 28,
1994, effective with respect to estates of decedents dying after
Mar. 1, 1994.
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