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disclaimer of anything. In fact, to the contrary, on
Schedule M of the decedent's estate tax return, one of the
trustees, Mr. Richard Rapp, acting in his capacity as
executor, answered "no" to question No. 1: "Did any
property pass to the surviving spouse as a result of a
qualified disclaimer?" Mr. Richard Rapp also failed to
attach to the petitioner's estate tax return a written
disclaimer as required by question No. 1. Finally, there
is no testimony or other evidence to show what interest in
property was being disclaimed, as required both by section
25.2518-2(b)(1), Gift Tax Regs. and by California Probate
Code section 278(b), or that the requisite interest passed
to the surviving spouse by operation of law without any
direction on the part of the persons purporting to make the
disclaimer. See DePaoli v. Commissioner, supra; Estate of
Bennett v. Commissioner, 100 T.C. 42, 67, 72-73 (1993).
Fiduciary Duty Compels Trustees To Pay All Trust Income
to Mrs. Rapp
Petitioner's final argument is that this case is
governed by the opinion of the Court of Appeals for the
Ninth Circuit in Estate of Ellingson v. Commissioner, 964
F.2d 959 (9th Cir. 1992), revg. 96 T.C. 760 (1991).
According to petitioner, "Under the Ellingson case, the
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