Estate of Rebecca A. Wineman - Page 59




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          nevertheless has taken the position administratively that the               
          required notice and opportunity to cure must be given.  The                 
          Commissioner’s position is consistent with our own view of                  
          section 2032A(d)(3).  See Estate of McAlpine v. Commissioner, 96            
          T.C. at 144, in which we stated with respect to section                     
          2032A(d)(3) and section 20.2032A-8, Estate Tax Regs., that “The             
          fact that the regulation does not contain a provision permitting            
          perfection within 90 days does not, and cannot, nullify the                 
          provision permitting perfection in section 2032A(d)(3).”22                  
               In this case, respondent gave the required notice and                  
          opportunity to cure to petitioner but only with respect to                  
          petitioner’s election under section 2032A(e)(7).  Respondent                
          provided no notice of any alleged defects with respect to                   
          petitioner’s election under section 2032A(e)(8) and no                      
          opportunity to cure the defects within the intendment of section            
          2032A(d)(3).  The first and only notice of a substantive problem            
          with petitioner’s election under section 2032A(e)(8) was provided           
          in respondent’s posttrial brief.                                            


               22In general, when Congress requires the Secretary to                  
          prescribe regulations implementing taxpayer-friendly statutory              
          provisions and the Secretary has not yet acted, this Court has              
          held that the statute’s operation is not conditioned upon the               
          issuance of regulations.  See Hillman v. Commissioner, 114 T.C.             
          103, 111-112 (2000); Estate of Maddox v. Commissioner, 93 T.C.              
          228, 233-234 (1989); First Chicago Corp. v. Commissioner, 88 T.C.           
          663, 676-677 (1987), affd. 842 F.2d 180 (7th Cir. 1988);                    
          Occidental Petroleum Corp. v. Commissioner, 82 T.C. 819, 829                
          (1984).                                                                     





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