Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 38

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             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 the              







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