- 20 - 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,Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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