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during decedent's lifetime to others. Under section
2056(b)(7)(B)(ii)(I) and (II), the relevant questions are whether
decedent was entitled to all the income from the property,
payable at least annually, and whether any person had a power to
appoint any part of the property to any other person. Under the
statutory provisions, the possibility of mismanagement in the
operation of the trust has no bearing on the eligibility for a
deduction under section 2056(b)(7) or the subsequent inclusion in
the surviving spouse's estate under section 2044.
Petitioner further contends that any additional taxes should
be paid by the Marital Trust. The question of ultimate liability
for payment of the tax is not relevant to the issue of
includability in the gross estate under section 2044. We note,
however, that the Code provides a mechanism for the recovery of
any additional liability resulting from inclusion of QTIP under
section 2044 by the executor of the estate of the surviving
spouse.
Section 2207A(a)(1) provides that if any part of the gross
estate is includable by reason of section 2044, the decedent's
estate is entitled to recover from the person receiving the
property the additional tax resulting from such inclusion.
Moreover, Andrew, in Article Five (A)(2) of his will, directed
the trustees of the Marital Trust to pay to decedent's personal
representative the amount necessary to discharge all death taxes
resulting from the inclusion of the principal of the Marital
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