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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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