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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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