- 38 - to section 2056(b)(7)(B)(ii)(II), and precluded the property from meeting the requirement, imposed by section 2056(b)(7)(B)(i)(I), that it be property “which passes from the decedent”. In each of the three cases, the Court of Appeals rejected the Commissioner’s reading of section 2056(b)(7) as contrary to the statute. Estate of Spencer v. Commissioner, supra at 230-231; Estate of Robertson v. Commissioner, supra at 783-784; Estate of Clayton v. Commissioner, supra at 1497. All of the courts noted that the election is one of the elements of the definition of QTIP, sec. 2056(b)(7)(B)(i)(III), and at least one of those courts reasoned that the statute requires the validity of the QTIP election to be determined as of the time the election is made, rather than as of the date of the decedent’s death, Estate of Spencer v. Commissioner, supra at 231; Estate of Robertson v. Commissioner, supra at 783- 784; Estate of Clayton v. Commissioner, supra at 1498. In each of the cases, when the court tested the validity of the election, it found that the property in the “QTIP trust” met the definition of QTIP because, in accordance with the decedent’s expressed interest, the surviving spouse was entitled to all of the income from thePage: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
Last modified: May 25, 2011