-12-
The final relevant amendment to section 2040 took place in
1981. Subsections (c), (d), and (e), which had been adopted in
1978, were repealed. Economic Recovery Tax Act of 1981 (ERTA),
sec. 403(c)(3), Pub. L. 97-34, 95 Stat. 172, 302. The definition
of a "qualified joint interest" in section 2040(b)(2) was
redefined to eliminate the requirement that the creation (or re-
creation) of the joint interest be treated as a gift.11 ERTA
sec. 403(c)(1), 95 Stat. 301-302. However, the operational
provision of section 2040(b)(1), providing for 50 percent
inclusion, was not changed. The effective date provision of the
1981 amendment made these changes applicable "to the estates of
decedents dying after December 31, 1981." ERTA sec. 403(e)(1),
95 Stat. 305.
The issue we face, then, is whether section 2040(b)(1)
applies to joint interests created before January 1, 1977, where
the deceased joint tenant died after December 31, 1981.
10(...continued)
treated as a "qualified joint interest" unless an election under
subsection (d) was made.
11As enacted in 1981, sec. 2040(b)(2) provided:
(2) Qualified joint interest defined.--For purposes of
paragraph (1), the term "qualified joint interest" means any
interest in property held by the decedent and the decedent's
spouse as--
(A) tenants by the entirety, or
(B) joint tenants with right of survivorship, but
only if the decedent and the spouse of the decedent are
the only joint tenants.
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: May 25, 2011