Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 19

                                       - 19 -                                         
               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.                                                               




Page:  Previous  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

Last modified: May 25, 2011