Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 47

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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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