- 19 - 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...)Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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