Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polachek - Page 55

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          estate is being administered".  Sec. 2053(a).  Claims are                   
          deductible if they are based on the personal obligation of the              
          decedent at the time of his or her death.  Sec. 20.2053-4, Estate           
          Tax Regs.  A liability arising out of tort is an example of a               
          claim that is deductible under section 2053(a).                             
               The issue here is whether Ms. Trompeter had a valid claim              
          against the estate under California law.  We begin our inquiry by           
          looking at the proceeding in the superior court, which culminated           
          in that court's entering a consent decree in favor of Ms.                   
          Trompeter.  Section 20.2053-1(b)(2), Estate Tax Regs., provides             
          that a consent decree before a local court will be accepted as a            
          basis for an estate tax deduction.  Section 20.2053-1(b)(2),                
          Estate Tax Regs. further provides that:                                     
               The decision of a local court as to the amount and                     
               allowability under local law of a claim or                             
               administration expense will ordinarily be accepted if                  
               the court passes upon the facts upon which                             
               deductibility depends * * * However * * * It must                      
               appear that the Court actually passed upon the merits                  
               of the claim.  This will be presumed in all cases of an                
               active and genuine contest. * * *                                      
          As noted by the Court of Appeals for the Ninth Circuit, "an order           
          of a state Court that adversely affects the tax right of the                
          United States and which is based upon a nonadversary proceeding,            
          does not foreclose the federal courts from [independently]                  
          determining the tax liabilities".  Wolfsen v. Smyth, 223 F.2d               
          111, 113-114 (9th Cir. 1955) (quoting Newman v. Commissioner,               
          222 F.2d 131, 136 (9th Cir. 1955), affg. 19 T.C. 708 (1953)); see           




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