Estate of Claude C. Focardi, Deceased, Nina M. Focardi, Personal Representative - Page 11

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                    (3) any noncontingent remainder interest if all of                
               the other interests in the trust consist of interests                  
               described in paragraph (1) or (2).                                     
          The regulations interpret this definition to include “a qualified           
          annuity interest, a qualified unitrust interest, or a qualified             
          remainder interest” and state that the “Retention of a power to             
          revoke a qualified annuity interest (or unitrust interest) of the           
          transferor’s spouse is treated as the retention of a qualified              
          annuity interest (or unitrust interest).”4  Sec. 25.2702-2(a)(5),           
          Gift Tax Regs.  The regulations explain that a qualified annuity            
          interest is “an irrevocable right to receive a fixed amount * * *           
          payable to (or for the benefit of) the holder of the annuity                
          interest" for each taxable year of the term and that a qualified            
          unitrust interest is “an irrevocable right to receive payment               
          periodically, but not less frequently than annually, of a fixed             
          percentage of the net fair market value of the trust assets,                
          determined annually.”  Sec. 25.2702-3(b)(1)(i) and (c)(1)(i),               
          Gift Tax Regs.  See generally sec. 25.2702-3(f), Gift Tax Regs.,            
          (defines the term “qualified remainder interest”).  The                     
          regulations also explain that in the case of a qualified annuity            
          interest, a fixed amount is either a set dollar amount or a set             


               4 This latter statement reflects a taxpayer-favorable rule             
          that was added to the regulations without comment.  The rule is             
          not required by either the statute or the legislative history               
          thereunder.  See 136 Cong. Rec. 30485, 30536-30540 (1990).  See             
          generally Bogdanski, “GRAT Valuation:  The Ninth Circuit Takes              
          its Schott”, 30 Est. Plan. 304, 306 (June 2003).                            





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Last modified: May 25, 2011