- 12 - 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’sPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011