Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 45

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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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