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Congress deliberately crafted the broad language of
section 2056(b)(7)(B)(v): “An election under [section
2056(b)(7)] with respect to any property shall be made
by the executor on the return of tax imposed by section
2001.” * * * [Emphasis supplied by the Court of
Appeals.] Congress did not use the words “any existing
qualified terminable interest property” or “any
property meeting the above definition as of the date of
decedent’s death” or any similar limiting language, and
we are not prepared to read such a limitation into this
statute. The language “any property” should be given
its ordinary meaning. Nowhere in the legislative
history of section 2056(b)(7) do we find an indication
that Congress intended a different reading of the
statute. * * *
* * * * * * *
The words of the statute are plain: no property meets
the definition of QTIP until the proper election is
made, and no QTIP election can be made until the estate
tax form is filed. Section 2056(b)(7)(B)(v). Since no
property can be QTIP until the election is made, the
proper date to determine if property satisfies the
requirement of section 2056(b)(7) is on the date of the
election.
* * * * * * *
Section 2056(b)(7) creates a new and different
legislative scheme. Under the election provision, no
property anywhere can be considered QTIP until an
election is made by the executor on Form 706, which can
only be done after the date of death. When the
Commissioner’s interpretation is carried to its logical
extent, no property could ever satisfy the statutory
definition of QTIP because the election for the
surviving spouse cannot be made until after the date of
decedent’s death. This simple fact highlights the
major problem with the Commissioner’s interpretation of
section 2056(b)(7).
* * * * * * *
The IRS would have us adopt an interpretation that
would force property to satisfy every requirement for
the QTIP counter-exception on the date of decedent’s
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