Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 21

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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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Last modified: May 25, 2011