Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 19

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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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