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Paragraph (e) of section 25.2518-2, Gift Tax Regs., is
entitled “Passage without direction by the disclaimant of
beneficial enjoyment of disclaimed interest”, and it reads in
pertinent part as follows:
(1) In general. A disclaimer is not a qualified
disclaimer unless the disclaimed interest passes
without any direction on the part of the disclaimant to
a person other than the disclaimant (except as provided
in paragraph (e)(2) of this section). * * *
If a power of appointment is disclaimed, the
requirements of this paragraph (e)(1) are satisfied so
long as there is no direction on the part of the
disclaimant with respect to the transfer of the
interest subject to the power or with respect to the
transfer of the power to another person. A person may
make a qualified disclaimer of a beneficial interest in
property even if after such disclaimer the disclaimant
has a fiduciary power to distribute to designated
beneficiaries, but only if the power is subject to an
ascertainable standard. * * *
(2) Disclaimer by surviving spouse. In the case of a
disclaimer made by a decedent’s surviving spouse with
respect to property transferred by the decedent, the
disclaimer satisfies the requirements of this paragraph
(e)(2) if the interest passes as a result of the
disclaimer without direction on the part of the
surviving spouse either to the surviving spouse or to
another person. If the surviving spouse, however,
retains the right to direct the beneficial enjoyment of
the disclaimed property in a transfer that is not
subject to Federal estate and gift tax (whether as
trustee or otherwise), such spouse will be treated as
directing the beneficial enjoyment of the disclaimed
property, unless such power is limited by an
ascertainable standard. * * *
Given the structure of the foregoing regulation, we believe
that subparagraph (1) sets forth the general principle and
subparagraph (2) establishes a more specific rule applicable only
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