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power over the corpus if the contingent event occurred before the
surviving spouse either withdrew the corpus or provided in his
will for the corpus' disposition. Given this possible loss of
power, we are unable to conclude that the surviving spouse's
power of appointment was exercisable by the surviving spouse
alone, see sec. 20.2056(b)-5(g)(1), Estate Tax Regs., and that it
was exercisable by the surviving spouse in all events, see sec.
20.2056(b)-5(g)(3), Estate Tax Regs.;6 see also S. Rept. 1013,
80th Cong., 2d Sess. 17 (1948), 1948-1 C.B. 285, 343 ("An example
of a power which * * * [is not exercisable alone and in all
events] is a power which (unless sooner exercised or released)
will terminate on * * * [a given date], or on the date of death
of the surviving spouse, whichever occurs first.").7
Section 20.2056(b)-5(g)(1) and (3), Estate Tax Regs.,
provides:
(g) Power of appointment in surviving spouse.--
(1) The conditions * * * that the surviving spouse must
have a power of appointment exercisable in favor of
herself or her estate and exercisable alone and in all
events, are not met unless the power of the surviving
spouse to appoint the entire interest or a specific
portion of it falls within one of the following
categories:
6 We are also unable to conclude that the Trust meets the
requirements of sec. 2056(b)(5) in that the Agreement provides
that the surviving spouse is not entitled to any trust income
upon incompetency.
7 This report accompanied H.R. 4790, 80th Cong., 2d Sess.
(1948), which was enacted as the Revenue Act of 1948, ch. 168,
62 Stat. 110. Sec. 2056(b) had its origin in sec. 361 of the
Revenue Act of 1948, 62 Stat. 117.
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