Rosalyn Deutsch - Page 28

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          decedent’s debts.  See, e.g., Fla. Stat. Ann. sec. 733.613 (West            
          1995) (power of sale over real property to pay debts); Fla. Stat.           
          Ann. sec. 731.34 (West 1964) (repealed 1974) (personalty liable             
          for decedent’s secured debts after 1939).                                   
               The Commissioner’s ruling in Rev. Rul. 64-101, 1964-1 C.B.             
          (Part 1) 77, confirmed that the longstanding practice of                    
          excluding dower from a widow’s gross income under the 1939 Code             
          and earlier revenue acts would be continued under the 1954 Code.            
          6 Merten's Law of Federal Income Taxation, sec. 36.81 at 390                
          (1949) (“Amounts received as dower by a widow are not taxable”              
          under the 1939 Code).  There is no evidence in the legislative              
          history of the 1954 Code that Congress intended to reverse the              
          exclusion when it enacted subchapter J.19  That exclusion ensures           
          that the surviving spouse will incur no income tax liability by             


               19 In Lemle v. United States, 419 F. Supp. 68, 71 (S.D.N.Y.            
          1976), affd. on another ground 579 F.2d 185 (2d Cir. 1978), the             
          District Court expressed the view that payment of a former                  
          version of the New York elective share, which was entitled to               
          share in estate income, resulted in sec. 662 distributions to the           
          surviving spouse, is distinguishable.  The Court of Appeals for             
          the Second Circuit framed the issue in Lemle as “whether, having            
          already received payments out of estate income, * * * [the                  
          taxpayer, a surviving spouse] can, by subsequent compromise                 
          agreement, recharacterize them as payments of principal” Lemle v.           
          United States, 579 F.2d at 188, when she and her husband’s estate           
          subsequently settled her right to the New York elective share.              
          The Court of Appeals decided that the taxpayer could not do so.             
          Id.; cf. Delmar v. Commissioner, 25 T.C. 1015, 1021-1022 (1956)             
          (income received as part of settlement in lieu of a statutory               
          forced share, which was entitled to share in estate income under            
          Illinois law, was taxable to the surviving spouse under sec.                
          162(c) of the 1939 Code).                                                   




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