Estate of Claude C. Focardi, Deceased, Nina M. Focardi, Personal Representative - Page 23

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                    (ii)  Accordingly, the amount of the gift is the                  
               fair market value of the property transferred to the                   
               trust reduced by the value of A's qualified interest                   
               (A's right to receive the stated annuity for 10 years                  
               or until A's prior death).  B's interest is not a                      
               qualified interest and is thus valued at zero under                    
               section 2702.                                                          
               Petitioners argue alternatively that this Court, if we                 
          conclude that the spousal interests in the GRATs are not                    
          qualified interests, must disregard those interests in that the             
          instruments establishing the GRATs state as much.  Petitioners              
          point the Court to Article Five D, which states that “No power,             
          right, or duty under the agreement will be effective or                     
          exercisable to the extent that it would cause my retained annuity           
          interest (or my wife’s [husband’s] interest, if any) hereunder to           
          fail to qualify as a ‘qualified annuity interest’ under I.R.C.              
          � 2702(b)(1)”.  Petitioners assert that the quoted text operates            
          to invalidate the spousal interests in that those interests are             
          not qualified interests.  Petitioners conclude that each GRAT is            
          now simply a GRAT for a set term of either 2 or 4 years, as the             
          case may be, and should be treated as such.                                 
               We reject petitioners’ alternative argument.  We do not                
          believe that petitioners are entitled at this time to treat each            
          GRAT in issue as one of a set term of years simply because the              
          GRATs state that our determination that the spousal interests are           
          not qualified interests essentially means that the spousal gift             
          is revoked.  Such a “savings clause” is ineffective for Federal             






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