Estate of Milada S. Neumann, Deceased, Eric W. Shaw, Ancillary Administrator, C.T.A. - Page 10

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            provision simply reflects a "how" characterization.  We follow                             
            that path herein.                                                                          
                  Under these circumstances and applying the teaching of the                           
            decided cases, we hold that the regulations contemplated under                             
            section 2663(2) reflect a "how" characterization and their                                 
            issuance is not a necessary precondition to the imposition of the                          
            GST tax on the transfers involved herein.  In enacting section                             
            2663(2), Congress simply recognized that there would be problems                           
            of allocation and calculations of tax in respect of nonresident                            
            aliens because, unlike citizens and residents, not all the                                 
            property of nonresident aliens is subject to U.S. estate tax.                              
                  We are unimpressed with petitioner's attempt to create a                             
            "whether" patina to section 2663(2) by pointing to alleged gaps                            
            and possible invalid provisions of the proposed regulations                                
            dealing with the definition of "direct skip" transfers and the                             
            calculation of the taxable amount of a "direct skip" and                                   
            applicable rate of tax.  Such gaps and provisions clearly go to                            
            the "how" and not to the "whether" in respect of the application                           
            of the GST tax.3  In this connection, we note that petitioner                              

            3  For a critical analysis of the proposed regulations, see                                
            Schlesinger, "The Generation-Skipping Transfer Tax--A                                      
            Reexamination on Its Ninth Anniversary", 74 Taxes 49 (Jan. 1996);                          
            Heller & Sasaki, "Proposed Regulation Section 26.2663-2 and the                            
            Application of the Generation-Skipping Transfer Tax to Transfer                            
            by Nonresident Aliens", 12 Intl. Tax & Bus. Law. 291 (1994); see                           
            also Helt, "Generation-Skipping Transfer Tax Regulations," 74                              
                                                                         (continued...)                




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