- 7 -
generally H. Rept. 94-1380, at 65-68 (1976), 1976-3 (Vol. 3) C.B.
738, 799-802.5
A qualified disclaimer requires an irrevocable and
unqualified refusal by a person to accept an interest in
property. Sec. 2518(b); Estate of Monroe v. Commissioner, 104
T.C. 352 (1995); see also Brown v. Routzahn, 63 F.2d 914 (6th
Cir. 1933); sec. 25.2518-1(a)(1), Gift Tax Regs. The theory
behind the use of disclaimers, as long reflected in the common
law, is that a person should never be forced to accept the
burdens of ownership of property without his or her consent.
Towson v. Tickell, 106 Eng. Rep. 575, 576-577 (K.B. 1819). The
consequence of treating the disclaimed property interest as if
such interest had never been transferred to the surviving spouse
is that the disclaimant is not considered to have made a transfer
and thereby avoids any resulting gift or generation-skipping tax
5 The parties have stipulated that to the extent local law is
applicable in this case, reference shall be made to the laws of
the State of New Mexico. New Mexico law provides in pertinent
part:
Unless the decedent or donee of the power has otherwise
indicated by his will, the interest renounced, and any
future interest which is to take effect in possession or
enjoyment at or after the termination of the interest
renounced, passes as if the person renouncing had
predeceased the decedent. * * * In every case, the
renunciation relates back for all purposes to the date of
death of the decedent or the donee, as the case may be.
[N.M. Stat. Ann. sec. 45-2-801 C. (Michie 1983 Repl.)]
See DePaoli v. Commissioner, 62 F.3d 1259 (10th Cir. 1995), revg.
T.C. Memo. 1993-577.
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