Estate of Ralph H. Davis, Deceased, Evelyn Davis, Personal Representative - Page 12




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                         (A) the interest or such portion thereof so                  
                    passing shall, for purposes of subsection (a), be                 
                    considered as passing to the surviving spouse, and                
                         (B) no part of the interest so passing shall, for            
                    purposes of paragraph (1)(A), be considered as passing            
                    to any person other than the surviving spouse.                    
               This paragraph shall apply only if such power in the                   
               surviving spouse to appoint the entire interest, or such               
               specific portion thereof, whether exercisable by will or               
               during life, is exercisable by such spouse alone and in all            
               events.                                                                
               To fit within the section 2056(b)(5) exception to the                  
          section 2056(b)(1) terminable interest rule, the surviving spouse           
          must be entitled to all of the income from the testamentary trust           
          (or from a specific portion thereof) for life and also have a               
          general power of appointment over the testamentary trust.  Sec.             
          2056(b)(5); see Estate of Walsh v. Commissioner, 110 T.C. 393,              
          398 (1998); see also Estate of Meeske v. Commissioner, 72 T.C. 73           
          (1979), affd. sub nom. Estate of Laurin v. Commissioner, 645 F.2d           
          8 (6th Cir. 1981).  In Estate of Meeske v. Commissioner, supra at           
          78, this Court observed:                                                    
                    By its terms, section 2056(b)(5) provides a fivefold              
               test for the deductibility of life estates coupled with                
               powers of appointment:  (1) The surviving spouse must be               
               entitled for life to all the income from the entire interest           
               or to all the income from a specific portion thereof.  (2)             
               The income must be payable annually or at more frequent                
               intervals.  (3) The surviving spouse must have a power to              
               appoint the entire interest or such specific portion to                
               either herself or her estate.  (4) The entire interest or              
               the specific portion must not be subject to a power in any             
               other person to appoint any part to anyone other than the              








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