Estate of Frank Armstrong, Jr., Deceased, Frank Armstrong III, Executor - Page 27




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               Committee Reports can be made after death of the donor                 
               spouse, per I.R.C. � 2513(a)(1) and I.R.C.                             
               � 2513(b)(2), and the non-donor survivor is jointly and                
               severally liable for the gift tax per I.R.C. � 2513(d).                
               Thus, a terminally-ill person may intentionally make a                 
               “deathbed gift” of taxable value to third parties for                  
               tax avoidance purposes, hoping that his young and                      
               healthy spouse (and beneficiary of the remainder of his                
               estate) will pay the gift taxes and thus effectively                   
               remove the gift tax from his tax transfer base, and her                
               transfer tax base as well if she lives for 3 years from                
               the time of his gifts.  By basing the inclusion under                  
               section 2035(c) on the person who pays the gift tax and                
               then dies within 3 years, rather than the person who                   
               makes the gift, Congress intentionally created a                       
               situation where a single individual does not have                      
               rights and protection equal to those of a married                      
               individual.                                                            
               We are unimpressed with the estate’s argument, which brings            
          to mind Justice Holmes’s description of an equal protection claim           
          as “the usual last resort of constitutional arguments”.  Buck v.            
          Bell, 274 U.S. 200, 208 (1927).  The committee report quoted                
          above merely describes the coordination of sections 2035(c) and             
          2513.  The coordination of these two sections does not, in and of           
          itself, result in favored treatment to married donors.15  As                
          previously discussed, the purpose of the gross-up rule is to                
          reduce disparities in the taxation of lifetime and deathtime                
          transfers by effectively taxing gifts made within 3 years of                
          death on a tax-inclusive basis (rather than on the tax-exclusive            
          basis that normally pertains to gifts), thereby ensuring that               
          assets used to pay gift taxes on these gifts do not escape the              

               15 The estate does not argue that the gift-splitting                   
          provisions of sec. 2513 are per se unconstitutional.                        





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