Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 38

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          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.                                                           





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