- 45 - 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, thePage: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
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