Estate of Hon Hing Fung, Deceased, Bernard Fung, Executor - Page 10




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          indebtedness, and taxes, “which the value of such part [i.e., the           
          part of the decedent’s gross estate which at the time of his                
          death is situated in the United States] bears to the value of his           
          entire gross estate, wherever situated.”  If the surviving spouse           
          is not a citizen of the United States, a marital deduction                  
          pursuant to section 2056 is allowed only where the subject                  
          property passes or is treated as passing to the surviving spouse            
          in a qualified domestic trust.  Sec. 2056(d)(1) and (2).  The               
          parties here do not dispute that the technical criteria relating            
          to a qualified domestic trust will be considered satisfied so               
          long as other substantive requirements for the marital deduction            
          are met.                                                                    
               B.  Burden of Proof                                                    
               In general, the Commissioner’s determinations are presumed             
          correct, and the taxpayer bears the burden of proving otherwise.            
          Rule 142(a).  Although recently enacted section 7491 may operate            
          in specified circumstances to place the burden on the                       
          Commissioner, the statute is effective only for court proceedings           
          that arise in connection with examinations commencing after July            
          22, 1998.  Internal Revenue Restructuring & Reform Act of 1998,             
          Pub. L. 105-206, sec. 3001(c), 112 Stat. 727.  Since the record             
          here is devoid of evidence showing that the underlying                      
          examination began after the relevant date, and since the estate             








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