-9- Decedent's will established two residuary trusts. The Part A trust contained a maximum marital deduction formula clause; the Part B trust did not. Respondent acknowledges that the property funding the Part A trust qualifies for the marital deduction. Respondent asserts that the effect of the transitional rule is to limit overall the amount of the marital deduction available to petitioner to that of the pre-ERTA quantitative limits. Hence, respondent posits that the amount of the marital deduction available to petitioner is the amount of the property funding the Part A trust. Petitioner asserts in its posttrial brief: The "Transitional Rule" was not intended to limit the marital deduction for property "passing to the surviving spouse", but rather was intended to prevent the unintended legislative amendment of a testator's testamentary scheme. In the present matter, the formula is used to divide property into a "Part A" trust and a "Part B" trust both of which "pass" to the surviving spouse. The "Part A" trust provides an income interest to the surviving spouse for life and grants her a general power of appointment and qualifies for the marital deduction and this is not contested by respondent. The "Part B" trust also qualifies for the marital deduction as it is Qualified Terminable Interest Property ("Q-TIP") and, therefore, pursuant to I.R.C. Sec. 2056(b)(7)(B) "passes" to the surviving spouse. As required, petitioner properly elected on Schedule M, Part 2 of the estate tax return Q-TIP treatment for the "Part B" trust. We find petitioner's position unpersuasive. The language ofPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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