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statute under any circumstances. We note that reallocation
of proceeds under EPTL section 11-2.1(k) is triggered by
failure to meet an objective standard of productivity.
The statute does not require or allow different treatment
as a result of the cause a failure to meet that level of
productivity.
Application of the 1987 provision results in no
reallocation of proceeds. EPTL section 11-2.1(k)(1), as
amended in 1987, provides as follows:
Except as otherwise provided in this
paragraph (k), a portion of the net proceeds of
a sale by a fiduciary * * * of any principal
property of an estate or trust * * * held for
more than a year which has not produced over the
period held an average net income of one percent
per annum of its inventory value (including as
income the value of any beneficial use of the
property by any income beneficiary), shall be
allocated to income as delayed income, as
provided in this paragraph (k). * * *
EPTL section 11-2.1(o)(4) defines "inventory value",
for purposes of section 11-2.1, as "the cost of property
purchased by the trustee and the market value of other
property at the time it was made subject to the trust."
The parties dispute the meaning of the phrase "made subject
to the trust". Petitioners assert that EPTL section
11-2.1(c)(1) provides that Mr. de St. Aubin's assets were
"made subject to the trust" as of his date of death.
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