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PARKER, J., dissenting: I think this Court was correct in
its interpretation of section 2056(b)(7) and correctly held that
the surviving spouse does not have a "qualifying income interest
for life" where passage of such income interest in the property
to the surviving spouse is contingent upon the executor's making
the QTIP election as to such property and therefore subject to
the executor's power to appoint the property to someone other
than the surviving spouse. Thus such property is not "qualified
terminable interest property" even though the executor ultimately
makes the QTIP election. Accordingly, I think this Court should
continue to follow its opinions in Estate of Clayton v.
Commissioner, 97 T.C. 327 (1991), revd. 976 F.2d 1486 (5th Cir.
1992); Estate of Robertson v. Commissioner, 98 T.C. 678 (1992),
revd. 15 F.3d 779 (8th Cir. 1994); and Estate of Spencer v.
Commissioner, T.C. Memo. 1992-579, revd. 43 F.3d 226 (6th Cir.
1995).
However, I agree with petitioner that if an appeal in this
case would lie to the U.S. Court of Appeals for the Eighth
Circuit, this Court would be bound under the Golsen rule to
follow the opinion of the Eighth Circuit in Estate of Robertson
v. Commissioner, supra. Golsen v. Commissioner, 54 T.C. 742
(1970), affd. 445 F.2d 985 (10th Cir. 1971). For that reason, I
think this Court must address the venue issue, and under this
Court's special venue statute I would conclude that any appeal in
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