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provisions for estate tax (section 2056(b)(7)) and the QTIP
provisions for gift tax (section 2523(f)) were designed to permit
a decedent (or donor spouse) to make a lifetime gift or a
testamentary bequest to his spouse of an income interest for life
in property but still control the disposition of that property at
the death of the surviving spouse or donee spouse. Congress did
not intend to vest the executor with the power to determine the
disposition of the decedent's property; i.e., whether the
surviving spouse would ultimately receive a qualifying income
interest for life in the property or whether some other heir or
heirs would receive that interest. To the contrary, the
legislative history makes clear that "tax consequences should not
control an individual's disposition of property." H. Rept. 97-
201, at 160 (1981), 1981-2 C.B. 352, 378.
In summary, I think this Court was right in its analysis of
the QTIP provisions in its Clayton-Robertson-Spencer opinions;
the Court of Appeals opinions are inconsistent as to when the
surviving spouse's "qualifying income interest for life" in
property is to be determined and whether the surviving spouse
must have a qualifying income interest for life in property
separate and apart from and independent of the fact that the
executor ultimately makes a QTIP election. For these reasons, I
think this Court should not, in the majority's words, "accede to
the decisions of the Courts of Appeals that have reversed our
decisions on the issue before us". Majority op. p. 16. This
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