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appropriate, I am unpersuaded that, in enacting section
2056(b)(7), Congress’ purpose was to exempt from the terminable
interest rule a bequest or devise that is uncertain (as to
whether the surviving spouse has a qualifying income interest for
life) at the time of the decedent’s death. The relevant
committee reports are silent, and the general rule of section
2056(b) is to the contrary. On that basis, even assuming
ambiguity, I would hold for respondent.
B. Committee Reports Are Silent
Section 2056(b)(7) was added to the Code by the Economic
Recovery Tax Act of 1981 (ERTA), Pub. L. 97-34, sec. 403(d), 95
Stat. 172, 302. H. Rept. 97-201 (H. Rept. 97-201), 1981-2 C.B.
352, is the report of the Committee on Ways and Means that
accompanied H.R. 4242, 97th Cong., 1st Sess. (1981) (which was
enacted as ERTA). In pertinent part, H. Rept. 97-201 details the
reasons for an unlimited marital deduction (simplification and
the view that an individual should be free to pass his entire
estate to a surviving spouse free of tax). It then states:
In addition, the committee believes that the
present limitations on the nature of interests
qualifying for the marital deduction should be
liberalized to permit certain transfers of terminable
interests to qualify for the marital deduction. Under
present law, the marital deduction is available only
with respect to property passing outright to the spouse
or in specified forms which give the spouse control
over the transferred property. Because the surviving
spouse must be given control over the property, the
decedent cannot insure that the spouse will
subsequently pass the property to his children.
Because the maximum marital deduction is limited under
present law to one-half of the decedent’s adjusted
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