- 47 - 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 apportionPage: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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