Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 20

                                       - 20 -                                         
          Memo. 1992-579, revd. 43 F.3d 226 (6th Cir. 1995), and I would so           
          hold.                                                                       
               Section 2056(b)(7)(B)(i) provides three general definitional           
          requirements that must be satisfied in order to qualify property            
          as QTIP property.  Arguably, the first two (namely, whether                 
          property passed “from” the decedent and whether the surviving               
          spouse “has” a qualifying income interest for life) could be                
          determined on the date of decedent’s death.                                 
               However, the third requirement (namely, whether the QTIP               
          election has been made) obviously cannot be determined until the            
          estate tax return is filed.  On that date, one can also determine           
          whether the first two requirements have been satisfied.  It                 
          therefore seems logical to me to determine whether all three                
          requirements of section 2056(b)(7)(B)(i) have been satisfied on             
          the date the estate tax return is filed.  That is the earliest              
          date on which one could possibly determine whether all three                
          requirements have been satisfied.  Accordingly, that date ought             
          to be used to determine whether each of the three requirements              
          has been satisfied.                                                         
               In contrast to the technical arguments and hypothetical                
          situations that are being made and raised on this issue, I agree            
          with the refreshingly straightforward and commonsense approach of           
          the Court of Appeals for the Sixth Circuit in Estate of Spencer             
          v. Commissioner, supra.  Therein, the Court of Appeals explained            
          as follows:                                                                 




Page:  Previous  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

Last modified: May 25, 2011