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GERBER, J., concurring: I agree with the majority’s
holding. I am compelled, however, to write separately to address
Judge Parker’s dissenting view that appellate venue depends on
the estate’s representative’s residence, rather than the domicile
of the decedent. The identity of the petitioner1 in a case
involving an estate is a question of some moment and one that
this Court has not yet addressed with any particularity.
The dissenting opinion contains the view that an appeal in
this case lies in the estate’s representative’s appellate venue
(the Court of Appeals for the Seventh Circuit), and, therefore,
we are not bound to follow the holding of the estate’s appellate
venue (the Court of Appeals for the Eighth Circuit). Were it
necessary to reach this question of first impression,2 I believe
the better view is that the estate is the petitioner, and, hence,
under section 7482(b)(1)(A) venue for an appeal in this case
would be in the place of the estate’s probate and/or the
1 Sec. 7482(b) prescribes that appellate venue will be in the
Court of Appeals for the circuit in which the legal residence of
the petitioner is located.
2 The dissent’s disagreement with the majority’s rationale could
have been expressed without discussing or relying on the effect
of venue on any possible appeal. Due to the majority’s decision
to no longer follow our prior position regarding the QTIP issue,
this Court would be in agreement with all Courts of Appeals that
have addressed this issue, and it would be unnecessary for us to
consider whether it would be appropriate to follow the rule of a
particular circuit. See Golsen v. Commissioner, 54 T.C. 742
(1970), affd. 445 F.2d 985 (10th Cir. 1971).
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