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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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