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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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