Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 24

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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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