Richard D. Hohenstein - Page 13

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               The bill does not change the present law requirement                   
               that a qualified use be an active trade or business use                
               as opposed to a passive, or investment use.                            
                    For example, if a decedent has leased otherwise                   
               qualified real property to a son pursuant to a net cash                
               lease, and the son conducts a farming operation on the                 
               property, the son's business use is attributed under                   
               the bill to the decedent for purposes of satisfying the                
               qualified use requirement (sec. 2032A(b)(1)).  On the                  
               other hand, during any period when the decedent leases                 
               the real property to a nonfamily member for use in a                   
               qualified use pursuant to a lease under which the                      
               rental is not substantially dependent upon production,                 
               the qualified use requirement is not satisfied. [Fn.                   
               ref. omitted.]                                                         

          With this amendment, Congress acknowledged that a decedent may              
          become ill or disabled in the years immediately preceding death.            
          Permitting a family member to farm the property prior to a                  
          decedent's death facilitates an orderly transition of ownership.            
          H. Conf. Rept. 97-215, at 248 (1981), 1981-2 C.B. 481, 507-508;             
          S. Rept. 97-144, supra, 1981-2 C.B. at 463-464.  The committee              
          reports to the 1981 amendment state, however, that the new                  
          provision did "not change the present requirement that the                  
          qualified heir owning the real property after the decedent's                
          death use it in the qualified use throughout the recapture                  
          period."  S. Rept. 97-144, supra, 1981-2 C.B. at 464; H. Rept.              
          97-201, supra, 1981-2 C.B. at 382.   Thus, post-death qualified             
          use remained person- and activity-specific.  See Shaw v.                    
          Commissioner, T.C. Memo. 1991-372.                                          
               ERTA did make one change as to post-death qualified use.  It           
          enacted a 2-year grace period after decedent's death during which           




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