Estate of Willis Edward Clack, Deceased, Marshall & Ilsley Trust Company, Co-Personal Representative, and Richard E. Clack, Co-Personal Representative - Page 68

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               C.  Internal Consistency                                               
               Section 2056(b) disallows the marital deduction with respect           
          to certain terminable interests.  Section 2056(b) had its origin            
          in section 361 of the Revenue Act of 1948, ch. 168, 62 Stat. 110,           
          117.  S. Rept. 1013, 80th Cong., 2d Sess. (1948), 1948-1 C.B. 285           
          (S. Rept. 1013), is the report of the Committee on Finance that             
          accompanied H.R. 4790, 80th Cong. 2d Sess. (1948) (which was                
          enacted as the Revenue Act of 1948).  S. Rept. 1013 has the                 
          following to say about the operation of the terminable interest             
          rule:                                                                       
                    [The terminable interest rule] is intended to be                  
               all-encompassing with respect to various kinds of                      
               contingencies and conditions.  Thus, it is immaterial                  
               whether the interest passing to the surviving spouse is                
               considered as a vested interest subject to divestment                  
               or as a contingent interest.  * * *  [The terminable                   
               interest rule] applies whether the terms of the                        
               instrument or the theory of their application are                      
               conceived as creating a future interest which may fail                 
               to ripen or vest or as creating a present interest                     
               which may terminate.  * * *  [1948-1 C.B. at 336.]                     
               The terminable interest rule has been interpreted as                   
          follows:                                                                    
                    Thus a terminable interest obviously may be either                
               a contingent interest (i.e., where vesting is subject                  
               to a condition precedent) or a vested interest subject                 
               to defeasance (i.e., where a vested interest may be                    
               divested by the occurrence of a condition subsequent).                 
               The critical factor which defeats the deduction is the                 
               defeasibility of an interest which will cause it to                    
               pass from the decedent to a third person.  * * *                       
               [Emphasis added.]                                                      
          Robertson v. United States, 199 F. Supp. 78, 80 (N.D. Ala. 1961),           
          revd. 310 F.2d 199 (5th Cir. 1962).  Thus, for example, a                   





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