- 41 -
to accumulate income of the marital trust during Laura's
lifetime." Petitioner takes this position in the
alternative to its position, discussed above, that the
order of the probate court was "a decision of a local court
upon the merits in an adversary proceeding". According to
petitioner, "the effect of such a qualified disclaimer is
that the income interest must be deemed to have passed from
the Decedent to Laura [i.e., Mrs. Rapp]."
Respondent argues that the Court should not consider
this issue, viz, whether the probate court's order meets
the requirements of a qualified disclaimer under State or
Federal law, because it was raised for the first time in
petitioner's post-trial brief. As a result, respondent
complains, the Government was deprived of an opportunity to
introduce evidence at trial that would have had a bearing
on the issue. In this regard, respondent notes that one of
the cotrustees, Mr. David Rapp, and the guardian ad litem,
Mr. Rae, were not called to testify at trial, and respon-
dent did not examine the other cotrustee, Mr. Richard Rapp,
about this issue. Respondent also raises a number of
substantive issues about whether the probate court's order
constitutes a qualified disclaimer under either Federal or
California State law. Finally, respondent argues in the
Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 NextLast modified: May 25, 2011