- 47 - 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. ThisPage: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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