Estate of Aldo H. Fontana, Deceased, Richard A. Fontana and Joan F. Rebotarro, Co-Executors - Page 7




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               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 be                     





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