Estate of Charles Baxter Southern, Sr., Deceased, First American Trust Company, N.A., Co-Executor - Page 3

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          administration expenses taken as a deduction on its fiduciary               
          income tax return, Form 1041.  Respondent determined that under             
          the language of the will, those administration expenses must be             
          subtracted in arriving at the residuary estate (thereby reducing            
          the marital deduction by an equal amount).  In the alternative,             
          because there was a residuary marital share, respondent                     
          determined that payment of administration expenses from estate              
          income (or the grant of discretion to make such payment) should             
          decrease the marital share in an equal amount to represent the              
          decrease in total value passing to the spouse.                              
               The alternative determination by respondent presents                   
          essentially the same issue2 as heard before the Supreme Court in            
          Estate of Hubert v. Commissioner, 101 T.C. 314 (1993), affd. 63             
          F.3d 1083 (11th Cir. 1995), cert. granted 517 U.S.   , 116 S. Ct.           
          1564 (1996), argued November 10, 1996.  Because the decision in             
          that case may be controlling as to this argument, we shall not              
          decide that issue at this time.  Rather, we shall preserve and              
          decide it after a decision in Estate of Hubert is handed down.              
               Thus, there are two issues presently to decide in this case.           
          The first is whether under the language of the will, $90,000 was            

               2  Petitioner and respondent agreed, and the Court entered a           
          decision in Estate of Southern v. Commissioner, docket No. 2248-            
          95 (Aug. 21, 1995), that deduction of the administration expenses           
          from the estate income on the fiduciary income tax return of                
          decedent's estate was proper.  Thus, the issue for decision here            
          will be whether the marital deduction must be reduced in the case           
          of a residuary marital bequest where administrative expenses have           
          been properly taken on the fiduciary income tax return.                     




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