Estate of Myrtle V. Dietz, Deceased, Edward A. Dietz, III, Executor - Page 7

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          amounts were not subjected to the gift tax during her life nor              
          required to be included in her gross estate upon her death.2                
               It is the treatment of the amount over which decedent                  
          possessed the power during the year of her death (the final                 
          year's amount) that is at issue.  It is respondent's position               
          that decedent's power had not lapsed at the time of her death,              
          making the exception under section 2041(b)(2) of the greater of             
          $5,000 or 5 percent of the value of assets (the section                     
          2041(b)(2) exception) unavailable, and thereby subjecting the               
          final year's amount to the general rule of inclusion under                  
          section 2041(a)(2).                                                         
               It is the estate's position that the section 2041(b)(2)                
          exception extends to the final year's amount.  The estate argues            
          that the example given in section 20.2041-3(d)(3), Estate Tax               
          Regs., is inconsistent with the language of section 2041(b)(2).             
          The estate also argues that the section 2041(b)(2) exception was            
          designed as a de minimis exception and that to include the final            
          year's amount in decedent's gross estate would defeat the purpose           
          of that section.  Further, the estate argues that the final                 
          year's amount should not be included because the estate has no              
          dominion or control over the trust property.                                



          2 Sec. 2514(e) contains a similar provision for purposes of                 
          gift tax.                                                                   




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