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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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