Estate of Henry A. Lassiter, deceased, Paula Ann Masters Lassiter, administrator, C.T.A. - Page 26

                                        - 26 -                                          
               (D) the State does not enact a statute applicable to                     
               such estate which construes this type of formula as                      
               referring to the marital deduction allowable by Federal                  
               law as amended by [section 403(a) of ERTA] * * *                         
               The transitional rule thus applies only in circumstances                 
          where there exists “a formula expressly providing that the spouse             
          is to receive the maximum amount of property qualifying for the               
          marital deduction allowable by Federal law”.  Given this                      
          language, we believe that only a very strained reading of the                 
          term “expressly” could expand its reach to cover a situation                  
          where, as here, the instrument in question does not use the                   
          phrase “maximum marital deduction”.  Respondent has cited and our             
          research has revealed no cases holding that a mere percentage                 
          bequest constitutes a formula within the meaning or intent of                 
          section 403(e)(3) of ERTA.  See Estate of Levitt v. Commissioner,             
          95 T.C. 289 (1990).  We decline to do so now and conclude that                
          the 1970 will is not subject to the transitional rule.  We apply              
          section 2056 as in effect at Mr. Lassiter’s date of death.                    
               This statute provides in relevant part:                                  
               SEC. 2056.  BEQUESTS, ETC., TO SURVIVING SPOUSE.                         
                    (a) Allowance of Marital Deduction.--For purposes                   
               of the tax imposed by section 2001, the value of the                     
               taxable estate shall, except as limited by subsection                    
               (b), be determined by deducting from the value of the                    
               gross estate an amount equal to the value of any                         
               interest in property which passes or has passed from                     
               the decedent to his surviving spouse, but only to the                    
               extent that such interest is included in determining                     
               the value of the gross estate.                                           

Page:  Previous  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  Next

Last modified: May 25, 2011