Estate of Ralph M. Nix, Sr., Deceased, Ralph M. Nix, Jr., Personal Representative - Page 11

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                  Second, petitioner's argument makes the marital deduction                            
            formula circuitous.  We interpret the marital bequest in the will                          
            as requiring the following calculation:  Step 1--the credit                                
            equivalent would be determined; step 2--the marital bequest would                          
            be based on the excess of the gross estate over the credit                                 
            equivalent.  Under petitioner’s approach, however, the                                     
            calculation would be performed a second time to take into                                  
            account, in funding the credit equivalent and the marital                                  
            deduction, the property disclaimed by the surviving spouse.  The                           
            effect would be to substitute one property for another in the                              
            marital bequest.  However, we do not find authority for this in                            
            decedent’s will.                                                                           
                  The will provided the personal representative with the sole                          
            power to identify the property to be transferred in satisfaction                           
            of the pecuniary marital bequest.  To hold for petitioner would                            
            be tantamount to giving the surviving spouse the power to pick                             
            and choose which property would be used to fund the marital                                
            bequest.  This would violate the intent of the testator as stated                          
            in his will.  Section 2518 contemplates a renunciation of a                                
            bequest of property, not the swapping of one property for another                          
            of equal value.  See sec. 25.2518-2(d)(1), Gift Tax Regs.                                  
            (receipt of consideration in return for making a disclaimer                                
            prevents the disclaimer from qualifying under the statute); see                            
            also Estate of Monroe v. Commissioner, 104 T.C. 352 (1995).                                






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