- 7 - b. General Power of Appointment Trusts Property in which a surviving spouse has a life interest may also qualify for an exception to the terminable interest rule, and, thus, for the marital deduction, if pursuant to section 2056(b)(5), the surviving spouse has a GPA relating to such property. Sec. 2056(b)(5). Section 2041(a) generally requires that the value of all property over which the decedent at death possesses a GPA be included in a decedent’s estate. Historically, a GPA has been equated with outright ownership of the property because the powerholder (i.e., the decedent) can appoint the property to his estate and, thus, dispose of it as his or her own property. Graves v. Schmidlapp, 315 U.S. 657, 659 (1942) (stating “For purposes of estate * * * taxation the power to dispose of property at death is the equivalent of ownership”); Peterson Marital Trust v. Commissioner, 78 F.3d 795 (2d Cir. 1996) (stating “For tax purposes, a general power of appointment has for many, many years been viewed as essentially identical to outright ownership of the property”), affg. 102 T.C. 790 (1994). In fact, the legislative history to section 402(e) of the Revenue Act of 1918, ch. 18, 40 Stat. 1097, the predecessor to section 2041, states: A person having a general power of appointment is, with respect to disposition of the property at his death, in a position not unlike that of its owner. The possessor of the power has full authority to dispose of the property at his death, and there seems to be no reason why the privilege which he exercises should not bePage: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011