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In the cases involving wills directing that estate tax be
paid out of the residuary "without apportionment", courts have
consistently held that the decedent used this language as an
election out of an apportionment statute that otherwise would
apply. Estate of Fine v. Commissioner, 90 T.C. 1068 (1988),
affd. without published opinion 885 F.2d 879 (11th Cir. 1989);
Estate of Brunetti v. Commissioner, T.C. Memo. 1988-517. We find
no reason that decedent's will should be interpreted any
differently.
Petitioner contends that this Court held, in Estate of
Brunetti v. Commissioner, supra, that a provision in a will that
estate taxes be paid out of the residue without apportionment is
insufficient direction to preclude the use of a State
apportionment statute. In Estate of Brunetti, which dealt with a
charitable bequest, the Court relied on the State apportionment
statute, because a codicil to the original will vitiated the
testator's original intent to elect out of the statute. The
Court stated:
We do not doubt that decedent's original intent
* * * [estate taxes paid out of my residuary as an
expense of administration without apportionment] was to
override the general rule of the California
apportionment statute * * * and to charge * * *
[estate] taxes exclusively to the residuary estate. We
must, however, also take into account the language of
the codicils. In this regard, the sixth codicil of
decedent's will is not clear as to decedent's intent.
[Id.; citations omitted; emphasis added.]
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