Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 25

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             will.  The nature of Mrs. Rapp's interest in the trust is a              
             matter of California State law.  See, e.g., Estate of Heim               
             v. Commissioner, 914 F.2d 1322, 1327 (9th Cir. 1990), affg.              
             T.C. Memo. 1988-433.                                                     
                  Petitioner argues that the order of the probate court               
             reforming the decedent's will should be respected for                    
             Federal estate tax purposes.  However, the law is clear,                 
             and both parties to this case agree, that we are not bound               
             by the action of a State trial court, such as the order of               
             the probate court, that has not been affirmed by the                     
             State's highest court.  Commissioner v. Estate of Bosch,                 
             387 U.S. 456 (1967); Ahmanson Found. v. United States, 674               
             F.2d 761, 773-775 (9th Cir. 1981); see Estate of Nicholson               
             v. Commissioner, 94 T.C. 666, 673-674, 680 (1990).  If the               
             action of the probate court is to be respected for Federal               
             estate tax purposes, it must be in conformity with                       
             California law, and in the absence of a determination by                 
             the California Supreme Court, we are charged with the                    
             responsibility of making that determination.  Commissioner               
             v. Estate of Bosch, supra at 465.  Thus, we must decide                  
             whether Mrs. Rapp had an enforceable right under California              
             law to obtain annual distributions of all of the income                  








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