Estate of Charles N. Aronson, Deceased, Barney P. Aronson, Executor - Page 47

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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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