Estate of Harriet R. Mellinger, Deceased, Hugh V. Hunter and Wells Fargo Bank, Co-Executors - Page 20




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          to get the full marital deduction, the decedent had to leave                
          property to the surviving spouse outright or had to leave                   
          property to the surviving spouse in trust with a general power of           
          appointment.  In either situation, the decedent's property was              
          aggregated with the property of the surviving spouse for                    
          valuation purposes when the surviving spouse died.  Accordingly,            
          respondent concludes that property in the QTIP trust should be              
          aggregated with the FOH shares in the Harriett trust for purposes           
          of determining the fair market value of the FOH stock.                      
               Section 2044 was designed to prevent QTIP property from                
          escaping taxation by including it in the estate of the second               
          spouse to die.  There is, however, no indication that section               
          2044 mandated identical tax consequences as an outright transfer            
          to the surviving spouse.                                                    
               Finally, respondent argues that section 2044(c) is a                   
          valuation section, rather than just an inclusion section.  See              
          Estate of Young v. Commissioner, 110 T.C. 297, 308-309 (1998).              
          In Estate of Young, we held that section 2040 provides an                   
          "artificial inclusion" of joint tenancy property, the entire                
          value less any contribution by the surviving joint tenant.  Id.             
          at 315.  We rejected the taxpayer's contention that section 2040            
          was merely an includability section because Congress had provided           
          an explicit approach to valuing joint tenancy property to be                
          included in the decedent's gross estate.  Id. at 315-316.  Thus,            





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