- 38 - 2056(b)(7)(B)(v), while a critical part of the definition of "qualified terminable interest property", is not part of the definition of "qualifying income interest for life" in section 2056(b)(7)(B)(ii). If Congress had intended the election by the executor to cure all other defects, I think it would have said so. While an election is necessary for QTIP, I think the election can only be made as to property in which the surviving spouse otherwise possesses a "qualifying income interest for life". The executor can elect whether or not the property in which the surviving spouse has a qualifying income interest for life is going to be taxable in the decedent's estate (no QTIP election) or deducted from his estate and later taxed in the surviving spouse's estate (QTIP election). An election under this paragraph cannot apply unless the property is otherwise qualifying; namely property passing from the decedent and property in which the surviving spouse has a qualifying income interest for life. Section 2056(b)(7)(B)(ii) defines the term "qualifying income interest for life" as follows: (ii) Qualifying income interest for life.--The surviving spouse has a qualifying income interest for life if-- (I) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, * * * and (II) no person has a power to appoint any part of the property to any person other than the surviving spouse.Page: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
Last modified: May 25, 2011