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death except the requirement of election. This would
effectively reduce the election requirement to a mere
formality, defeat its apparent purpose and its most
reasonable interpretation. * * *
* * * * * * *
This decision is in keeping with the overarching
purpose of Congress to liberalize the requirements
surrounding the marital deduction. The 1981 amendments
to section 2056 made a number of changes, each of which
expanded the scope of the marital deduction. In this
spirit, we think an interpretation favoring the
allowance of the deduction is in keeping with
Congressional intent. It recognizes that wills are
often drafted long in advance of death and that family
situations and the value of assets may change
dramatically. There is no reason to interpret section
2056(b)(7) to require that the will identify QTIP
property long in advance of death and thereby deny
taxpayers the full advantage of the marital deduction
for QTIP property. The election provision is plain
enough and seems purposely worded to avoid this estate
planning problem. [43 F.3d at 230-233.]
In the QTIP definitional requirements of section
2056(b)(7)(B), because it is the first date on which the claimed
QTIP property could possibly qualify under section 2056(b)(7)(B),
the date on which the estate tax return is filed is the only
directly relevant date. If, on that date, all of the
requirements have been satisfied (namely, the property passed
from the decedent, the surviving spouse then has a qualifying
income interest for life, and the election has been made on the
return), the property should “be treated”, see sec.
2056(b)(7)(A)(i), as fully meeting the definitional requirements
of section 2056(b)(7)(B).
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