Estate of Melvine B. Atkinson - Page 11




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          checks, nor did petitioner present any evidence demonstrating a             
          gap in the check sequence.  Though MacQuarrie testified that he             
          made copies of checks written on the trust account, no such                 
          copies were presented to evidence these alleged payments.  On the           
          other hand, we do have evidence that no payments were ever                  
          actually consummated before decedent’s death.  The trust was                
          never diminished by any payments during decedent’s life.  Because           
          the trust value was undiminished and no transfer of funds                   
          occurred, operationally the trust did not meet the express 5-               
          percent requirement of the statute and cannot qualify for                   
          treatment as a charitable remainder trust.   Accordingly, section           
          2055 applies, and the estate is not entitled to a deduction for             
          the bequest of a charitable split-interest.4                                
               Petitioner alternatively argues that the trust should not be           
          disqualified as a CRAT for the lack of payments to decedent                 
          because the failure of action took place during the trustor’s               
          lifetime.  Petitioner argues that section 1.664-1(a)(5), Income             
          Tax Regs., allows for CRAT’s created inter vivos to ignore all of           
          the requirements established by section 664 until the moment of             





               4 The additional failure of the trust attributable to the              
          payments to the secondary beneficiary, when coupled with the more           
          technical “5 percent rule” makes respondent’s position that the             
          trust failed operationally more compelling.  See infra pp. 14-15.           






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