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After concessions by the parties, the sole issue for
decision in this case is whether the property distributed
to the testamentary trust established under the decedent's
will is QTIP, as defined by section 2056(b)(7)(B)(i), with
the result that the value of that property is eligible to
be included in the allowance of marital deduction provided
by section 2056(a). Petitioner bears the burden of proving
eligibility for the deduction. Rule 142(a), Tax Court
Rules of Practice and Procedure. All Rule references in
this opinion are to the Tax Court Rules of Practice and
Procedure.
As originally written, Article Fifth of the decedent's
1986 will provides that the residue of the decedent's
property, after the payment of certain debts and expenses,
is to be placed in trust for the benefit of the decedent's
surviving spouse, and, upon her death, to be divided
equally between the decedent's two sons. The will does not
give Mrs. Rapp the right to receive income from the trust.
It provides that she is entitled to receive distributions
of income and principal from the trust if the cotrustees
make the determination in their "absolute discretion" that
she is in need of funds "for her proper health, education
and support." Thus, under the decedent's 1986 will,
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