Estate of Edna Pearce Lockett Deceased, David F. Lanier, Personal Representative - Page 13

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          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 by               



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