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(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.
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