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the QTIP election mechanism assures that the property will be
included in the estate of one spouse or the other.1
Another question raised by the case at hand is whether, in
the light of Central Pa. Sav. Association & Subs. v.
Commissioner, 104 T.C. 384 (1995), we should have stuck to our
guns in the face of reversal by three Courts of Appeals. One
difference between the case at hand and Central is that in
Central the Courts of Appeals upheld a regulation that we had
held invalid. Here, the final regulation, which Judge Parker
would uphold, dissenting op. p. 48--a question properly left open
by the majority opinion--was published just before Estate of
Robertson was reversed. Thus, the reversals in Estate of
Robertson and Estate of Spencer were in the face of Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-844 (1984). The Court of Appeals for the Sixth Circuit
in Estate of Spencer v. Commissioner, 43 F.3d at 234, tried to
defuse the Chevron argument by citing INS v. Cardoza-Fonseca, 480
U.S. 421 (1987), for the proposition that the Commissioner's
1See Covey, Estate, Gift and Income Taxation--1993 Developments,
U. Miami 28th Inst. on Est. Plan. par. 117.1 (1994); id.--1994
Developments par. 116.1 (1995). Covey has warned will drafters
of the danger of relying on the Court of Appeals for the Fifth
Circuit's approach in Estate of Clayton v. Commissioner, 976 F.2d
1486 (5th Cir. 1992), revg. 97 T.C. 327 (1991). The warning
still seems to be sound, particularly in view of the position
taken in sec. 20.2056(b)-7(d)(3), Estate Tax Regs.
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