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appeals stated in dicta, that the language in Mr. Posner’s will
was also insufficient to give decedent an inter vivos power of
appointment over the marital trust property. Consequently, we
hold that decedent possessed no general power of appointment for
purposes of section 2041(a)(2).
III. Duty of Consistency
On its estate tax return, Mr. Posner’s estate claimed a
marital deduction for the marital trust property.10 In doing so,
respondent contends, Mr. Posner’s estate represented that
decedent possessed a general power of appointment over the
marital trust property.11 Respondent argues that the duty of
10 Sec. 2056(a) allows a marital deduction from a decedent’s
gross estate for the value of any interest in property passing to
the decedent’s surviving spouse. Sec. 2056(c), as in effect at
the time of Mr. Posner’s death, limited the aggregate amount of
the marital deduction to 50 percent of the value of the adjusted
gross estate.
11 A marital deduction is generally not allowable for any
“terminable interest”, which is a property interest that will
terminate or fail “on the lapse of time, on the occurrence of an
event or contingency, or on the failure of an event or
contingency to occur”. Sec. 2056(b)(1); Estate of Davis v.
Commissioner, T.C. Memo. 2003-55. Sec. 2056(b)(5) modifies this
general rule by allowing a marital deduction for property with
respect to which the surviving spouse is given a life estate with
a general power of appointment.
We point out that Mr. Posner died before the 1981 enactment
of the qualified terminable interest property (QTIP) rules of
sec. 2056(b)(7). See Economic Recovery Tax Act of 1981, Pub. L.
97-34, sec. 403(d), 95 Stat. 302 (effective generally for estates
of decedents dying after Dec. 31, 1981). Pursuant to the QTIP
rules, if certain conditions are met, property with respect to
which the spouse has a qualifying life interest may qualify for
(continued...)
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