- 13 - to a qualifying organization or whether the estate fiduciary made the transfer in the exercise of his discretion; only in the former case is a deduction generally allowed. See Estate of Pickard v. Commissioner, supra at 622 ("the fact that the designated portion of decedent's estate inevitably inured to the benefit of the charity did not save the day"). The Estate Tax Regulations provide guidance in this area: (a) Remainders and similar interests. If a trust is created or property is transferred for both a charitable and a private purpose, deduction may be taken of the value of the charitable beneficial interest only insofar as that interest is presently ascertainable, and hence severable from the noncharitable interest. * * * (b) Transfers subject to a condition or a power. (1) If, as of the date of a decedent's death, a transfer for charitable purposes is dependent upon the performance of some act or the happening of a precedent event in order that it might become effective, no deduction is allowable unless the possibility that the charitable transfer will not become effective is so remote as to be negligible. * * * [Sec. 20.2055-2(a) and (b), Estate Tax Regs.] These two requirements, the "presently ascertainable" and "remote possibility" requirements, were approved by the Supreme Court in Commissioner v. Estate of Sternberger, 348 U.S. 187 (1955) (expressly approving a prior version of these regulations) and by the Court of Appeals of the Fifth Circuit in Florida Bank v. United States, 443 F.2d 467, 471 (5th Cir. 1971) (concluding that the section 20.2055-2, Estate Tax Regs., appropriately implements section 2055). The Court of Appeals for the Eleventh Circuit, to which an appeal in this case would lie, deems itself bound byPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011