Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 12

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          point.  See Commissioner v. Estate of Bosch, supra; Estate of               
          Casey v. Commissioner, 948 F.2d 895, 898 (4th Cir. 1991), revg.             
          T.C. Memo. 1989-511; Ward v. Commissioner, 87 T.C. 78, 91-92                
          (1986); Estate of Fulmer v. Commissioner, 83 T.C. 302, 306                  
          (1984).  Therefore, in deciding whether decedent possessed a                
          general power of appointment, relevant decisions of the Maryland            
          Court of Appeals are binding on this Court.  Decisions of the               
          court of special appeals, on the other hand, are not binding;               
          these decisions, if on point, are entitled to “proper regard”.              
               In Posner v. McDonagh, No. 3C971002 (Md. Ct. Spec. App. Mar.           
          11, 1999), the court of special appeals held that decedent                  
          possessed no testamentary power of appointment.  The estate                 
          relies heavily on the statement in the court of special appeals’            
          unreported opinion that Mr. Posner’s will was “insufficient to              
          grant Rose Posner either an inter vivos or a testamentary power             
          of appointment over the marital trust’s assets.”  Id.  This                 
          statement, however, is dicta; the only issue before the court of            
          special appeals was whether decedent possessed a testamentary               
          power of appointment.  Indeed, in a subsequent published opinion            
          involving the apportionment of taxes relating to the marital                
          trust property, the court of special appeals characterized its              
          prior statement as dicta:                                                   
                    On appeal, this Court held that Rose did not have                 
               a testamentary power of appointment over the assets of                 
               the Marital Trust, and affirmed the trial court.  In                   
               dicta, we also stated that the language of Nathan’s                    





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