Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 44

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               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.  * * *                   












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