Estate of Leon Amiel, Deceased, Leon L. Amiel, Administrator, c.t.a. - Page 9

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               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 of           





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