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gross Estate. [Reproduced literally.]
It is respondent’s position that decedent had at the time of
her death a general power of appointment with respect to $5,000
of the principal of the inter vivos trust and that consequently
$5,000 is includible in decedent’s gross estate under section
2041(a)(2). In support of that position, respondent argues:
Petitioner contends that by virtue of an agreement
executed by all of the then living beneficiaries of the
inter vivos trust and the trustee after the death of
the settlor, Decedent did not have the right to with-
draw $5,000 of trust principal at her death and there-
fore did not possess a general power of appointment
over that amount. Respondent disagrees as to the
effect of the agreement.
The agreement entered into by the beneficiaries
did bar the beneficiaries from withdrawing $5,000 of
trust principal while the agreement was in effect.
However, the agreement terminated by its terms on the
happening of any of four events, including the death of
a beneficiary. Pursuant to the terms of the agreement,
when a beneficiary died, her share was withdrawn from
the agreement and disposed of according to the original
trust document. The agreement terminated when Decedent
herein died, if not earlier, and Decedent possessed at
her death the right to withdraw $5,000 of trust princi-
pal. Accordingly, that amount is includible in her
estate pursuant to I.R.C. � 2041(a)(2). [Fn. ref.
omitted.]
Section 2041 provides in pertinent part as follows:
SEC. 2041. POWERS OF APPOINTMENT.
(a) In General.--The value of the gross estate
shall include the value of all property--
* * * * * * *
(2) Powers created after October 21, 1942.--To
the extent of any property with respect to which the
decedent has at the time of his death a general power
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