Rosalyn Deutsch - Page 13

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          distinction without a difference”, respondent argues that any               
          comparison between them is “inapposite”.                                    
               Inasmuch as State law is the source of legal rights and                
          interests in property and income, we first ascertain the legal              
          and economic characteristics of the Florida elective share under            
          the Florida Probate Code as compared with Florida statutory                 
          dower.  In so doing, we are bound and guided by the relevant                
          rulings of the Florida Supreme Court, Commissioner v. Estate of             
          Bosch, 387 U.S. 456, 465 (1967), and give “proper regard” to                
          rulings of the lower Florida courts, id.  We then determine the             
          effect of those legal rights and interests for Federal income tax           
          purposes in accordance with Federal income tax principles and               
          rules.  Morgan v. Commissioner, 309 U.S. 78, 81 (1940); Lyeth v.            
          Hoey, 305 U.S. 188, 193-194 (1938); Jones v. Whittington, 194               
          F.2d 812, 815 (10th Cir. 1952).                                             
               We agree with petitioner and conclude that the distribution            
          rules of subchapter J do not apply to her Florida elective share.           
          The legal and economic differences between petitioner's interest            
          in the Florida elective share and the interests of the residuary            
          beneficiaries are so significant that their respective interests            
          must be treated differently for Federal income tax purposes.  The           
          Florida elective share, which replaced statutory dower in 1975,             
          should be accorded the same Federal income tax treatment as                 
          statutory dower because they have common legal and economic                 





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