- 44 - The term "property * * * to which an election under this paragraph applies" under section 2056(b)(7)(B)(i)(III) means something different from property for which an election "has been made". I think the term refers to property that meets the two preceding requirements; namely, property "which passes from the decedent" (sec. 2056(b)(7)(B)(i)(I)) and property "in which the surviving spouse has a qualifying income interest for life" (sec. 2056(b)(7)(B)(i)(II)). I think the surviving spouse must first have a qualifying income interest for life in the property before the executor can make the QTIP election as to all or any part of that property. The Court of Appeals for the Fifth Circuit held that the requirement that the property be an interest to which an election under this paragraph applies is satisfied if "the property being tested for eligibility is the same property to which the election made by the * * * [executor] applies." Estate of Clayton v. Commissioner, 976 F.2d at 1496. In reversing this Court, however, the Fifth Circuit stated: the Tax Court insist[s] that the "property" here under examination is the entire residue of testator's estate, being the maximum amount of property and interests in property with which * * * [the marital trust] could be funded were a total QTIP election to be made. * * *Page: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Next
Last modified: May 25, 2011