Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 42

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             alternative that, even if the order of the probate court                 
             does constitute a qualified disclaimer, Mrs. Rapp did not                
             thereby receive a qualifying income interest for life as                 
             required by section 2056(b)(7)(B)(i)(II).                                
                  In general, if a person makes a qualified disclaimer                
             with respect to an interest in property, then the Federal                
             estate, gift, and generation-skipping transfer tax                       
             provisions apply "as if the interest had never been                      
             transferred to such person."  Sec. 2518(a); see sec.                     
             25.2518-1(b), Gift Tax Regs.  The interest is treated as                 
             passing directly from the transferor of the property to                  
             the person entitled to receive it as a result of the                     
             disclaimer.  Sec. 25-2518-1(b), Gift Tax Regs.  If property              
             is treated as passing from the decedent to his or her                    
             surviving spouse as a result of a qualified disclaimer,                  
             then the value of the property can be included in the                    
             marital deduction.  See DePaoli v. Commissioner, 62 F.3d                 
             1259 (10th Cir. 1995), revg. T.C. Memo. 1993-577; sec.                   
             20.2056(d)-1(b), Estate Tax Regs.                                        
                  Petitioner raised its contention that the probate                   
             court order constituted a qualified disclaimer under                     
             section 2518 for the first time in its post-trial brief.                 
             In deciding whether to permit a party to raise a new issue               







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