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surviving spouse the value of property for which no QTIP election
was made. Thus, petitioner contends that the value of the Item
II trust is not includable in decedent's gross estate.
Respondent contends that petitioner must include the value
of the Item II trust in decedent's gross estate under the duty of
consistency.4 For reasons discussed next, we agree with
respondent.
B. Marital Deduction
A tax is imposed on the transfer of the taxable estate of
every decedent who is a citizen or resident of the United States.
Sec. 2001(a). In computing the value of the taxable estate, an
estate may deduct the value of certain interests which pass from
the decedent to the decedent's spouse (marital deduction). Sec.
2056(a). Congress enacted the marital deduction in 1948 and
3(...continued)
or all of such property.
(c) Property Treated as Having Passed From
Decedent.--For purposes of this chapter and chapter 13,
property includible in the gross estate of the decedent
under subsection (a) shall be treated as property
passing from the decedent.
4 Respondent first raised this issue in an amendment to
answer filed on Oct. 21, 1996. Respondent concedes that this
issue is new matter under Rule 142(a). Thus, respondent has the
burden of proving that the duty of consistency applies here.
Rule 142(a); see Cluck v. Commissioner, 105 T.C. 324, 331 n.11
(1995).
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