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primary reasons for sections 2055 and 664 was to ensure that any
amount set aside for charity was not diminished by payments to
noncharitable beneficiaries.
The trust here, however, provides for four potential
secondary beneficiaries who could have survived decedent and
elected to receive payments that could have reduced the amount
due to charity. An expressed focus of Congress in enacting the
5-percent distribution requirement was to prevent a charitable
remainder trust from being used to circumvent the current income
distribution requirements imposed on private foundations. See S.
Rept. 91-552 (1969), 1969-3 C.B. 423, 481. If there were no such
requirement, a charitable remainder trust could be used to
accumulate trust income tax-free, while a private foundation
would remain limited in the amount of income it might accumulate.
See id.
Though the terms of the annuity trust met the letter of the
statutory requirement providing for distributions equal to 5
percent annually, the trust did not operate in accordance with
those terms. Petitioner bears the burden of proof in this
matter, including the burden of substantiation. See Rule 142(a).
Petitioner has presented no persuasive evidence that checks for
the 5 percent annuity ever existed or were ever sent to decedent.
Purportedly, MacQuarrie remitted checks to decedent that were not
cashed. However, there is no record of canceled or uncanceled
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