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have an obligation to the beneficiaries to exercise proper skill
and care with the assets of the trust.” Id. at 304.
Subsequently, the Courts of Appeals for the Federal and
Fourth Circuits in Mellon Bank, N.A. v. United States, supra, and
Scott v. United States, supra, respectively, diverged from the
position taken by the Court of Appeals for the Sixth Circuit.
These latter rulings were consistent in their rationale and
result, summarized as follows by the Court of Appeals for the
Fourth Circuit:
the second requirement of � 67(e)(1) does not ask
whether costs are commonly incurred in the
administration of trusts. Instead, it asks whether
costs are commonly incurred outside the administration
of trusts. As the Federal Circuit decided in Mellon
Bank, investment-advice fees are commonly incurred
outside the administration of trusts, and they are
therefore subject to the 2% floor established by
� 67(a). * * * [Scott v. United States, supra at 140.]
See also Mellon Bank, N.A. v. United States, supra at 1281 (“the
second requirement treats as fully deductible only those trust-
related administrative expenses that are unique to the
administration of a trust and not customarily incurred outside of
trusts”).
In construing section 67(e)(1), the Courts of Appeals for
both the Federal and Fourth Circuits emphasized the importance of
not interpreting the statute so as to render superfluous any
portion thereof. Scott v. United States, supra at 140; Mellon
Bank, N.A. v. United States, supra at 1280. Moreover, both
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