Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 27

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                  We are not convinced that there was a "genuine and                  
             active contest" in the probate court or that the order of                
             the probate court constitutes "a decision of a local court               
             upon the merits in an adversary proceeding", so as to                    
             trigger the presumption set forth in the above regulation.               
             Sec. 20.2056(e)-2(d)(2), Estate Tax Regs.  In this                       
             connection, it is significant that the guardian ad litem                 
             stated during the hearing before the probate court that a                
             "benefit" would be realized by the entire Rapp family if                 
             the estate tax of approximately $2 million were postponed                
             until Mrs. Rapp's death.  He stated as follows:                          

                       Under those circumstances the benefit to                       
                  the entire family, the entire estate, by post-                      
                  poning the tax until the surviving spouse dies,                     
                  I believe is also a benefit on the person I have                    
                  been appointed to represent.                                        

             We do not accept petitioner's assertion that the                         
             investigation conducted by the executor proves that the                  
             proceeding before the probate court was adversarial in                   
             nature.  To the contrary, it is equally likely that the                  
             executor's investigation was undertaken to justify                       
             petitioner's position before this Court in order to obtain               
             the "benefit" of postponing the estate tax.                              








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