Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 35

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          than the Court of Appeals for the Fifth Circuit's opinion in                
          Clayton might lead one to believe.4                                         


























          4The Courts of Appeals--for the Fifth Circuit in Estate of                  
          Clayton, supra (before the release of the final regulation) and             
          the Eighth Circuit in Estate of Robertson, 15 F.3d 779 (8th Cir.            
          1994), revg. 98 T.C. 678 (1992) (after its release)--found the              
          Commissioner's position to be in violation of the plain language            
          of the statute.  Acceptance of this view would derail the inquiry           
          in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,              
          Inc., 467 U.S. 837 (1984), from getting to the second step that             
          requires deference to the Commissioner's view.  It's at this                
          point that I part company from the position stated so                       
          categorically by the Court of Appeals for the Fifth Circuit.  The           
          contrariety of judicial views on this subject shows that                    
          reasonable people can disagree over what the appropriate result             
          should be and whether it turns on the interpretation to be given            
          to one or the other prong of sec. 2056(b)(7)(i) and (ii) or on              
          the policy argument.                                                        



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