- 26 - allegation. First, respondent maintains that the explicit language of the trust agreement precludes any argument that a disclaimer not effective under section 2518 can, nonetheless, be effective under State law to bring into operation the provisions of Trust B. The trust instrument states that allocation to Trust B would occur in the event that the surviving settlor “effectively disclaims (under Code Section 2518 or any successor provision then in effect)”. The estate counters that the foregoing terms create no express requirement but only an inference, alerting the trustee to be aware of the statute. Second, respondent contends that even if the disclaimer was effective under State law, the property at issue passed to Trust B as a result of a discretionary act of the executor in making the disclaimer, and not because of an act by decedent. It is respondent’s position that decedent’s own actions in executing the power of appointment and her subsequent death caused all property to be treated at that time as subject to the Trust A provisions. To this point, the estate once again responds with reference to the relation-back doctrine. Third, with respect to the distribution to the State of Israel, respondent avers that a deduction is not allowable in any event because Trust B provides only for an unrestricted gift. Accordingly, respondent characterizes the gift as having failed the requirement that the donor restrict use of a gift made to aPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011