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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:
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