-13- remainder of the term or until the surviving spouse’s earlier death. Petitioners argue that the spousal interests were qualified interests in that they were “fixed and ascertainable interests existing for a specified term of years, for the life of the term holders, or for the shorter of the two.” Petitioners assert that the GRATs operated in the same manner as the GRATs in Schott v. Commissioner, 319 F.3d 1203 (9th Cir. 2003), revg. and remanding T.C. Memo. 2001-110, which the Court of Appeals for the Ninth Circuit held were qualified interests under section 2702(b). Petitioners stress that the Court of Appeals for the Ninth Circuit concluded in Schott that section 25.2702-2(d)(1), Example (7), Gift Tax Regs., establishes, contrary to respondent’s position both there and here, that a spousal interest is not disqualified simply because it is contingent upon a spouse’s surviving the grantor.5 Petitioners recognize that 5 Sec. 25.2702-2(d)(1), Example (6) and Example (7), Gift Tax Regs., states: Example (6). A transfers property to an irrevocable trust, retaining the right to receive the income for 10 years. Upon expiration of 10 years, the income of the trust is payable to A’s spouse for 10 years if living. Upon expiration of the spouse’s interest, the trust terminates and the trust corpus is payable to A’s child. A retains the right to revoke the spouse’s interest. Because the transfer of property to the trust is not incomplete as to all interests in the property (i.e., A has made a completed gift of the remainder interest), section 2702 applies. (continued...)Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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