- 42 - 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 issuePage: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
Last modified: May 25, 2011