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The estate contends that New York law and public policy
favor the marital deduction and presume that taxpayers wish to
take advantage of it. The estate relies on In re Choate, 533
N.Y.S.2d 272 (Sur. Ct. 1988). Initially, we note that this case
is a decision of a lower court that was not affirmed by New
York’s highest court. Accordingly, this decision is not binding
on us. Commissioner v. Estate of Bosch, supra.
Even so, Choate is distinguishable. In Choate, the court
found that the proposed reformation did not alter the testator’s
dispositive scheme under the testator’s will. The court found
that the testator in Choate intended to take full advantage of
the available tax deductions and exemptions. That is not the
case herein. Additionally, in Choate, there was a change in law
(the imposition of the GST tax) that was not in effect when the
testator executed his will. Again, that is not the case herein.
The estate also cites N.Y. Est. Powers & Trusts Law (EPTL)
section 13-1.3 (McKinney 2003) for support. N.Y. EPTL section
13-1.3 provides the order in which assets are abated in paying
the expenses of an estate. The order of abatement provided for
in this section does not, however, apply to estate taxes. N.Y.
EPTL sec. 13-1.3(d). Estate taxes are apportioned under N.Y.
EPTL section 2-1.8 (McKinney 2003).
N.Y. EPTL section 2-1.8 does not support petitioner’s
position either. N.Y. EPTL section 2-1.8 applies to apportion
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