Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 12

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               trusts that were irrevocable prior to the date the                     
               House Ways and Means Committee began consideration of                  
               the bill containing the GST tax provisions.  The most                  
               logical explanation for this grandfather clause is to                  
               protect the reliance interests of trust settlors who                   
               established irrevocable trusts prior to the legislative                
               introduction of the GST tax regime eventually enacted                  
               by TRA 1986.  See Tataranowicz v. Sullivan, 959 F.2d                   
               268, 277 (D.C. Cir. 1992); Sercl v. United States, 684                 
               F.2d 597, 599 (8th Cir. 1982).                                         
                    As a corollary to its protection of reliance                      
               interests, the grandfather clause does not apply to                    
               transfers “made out of corpus added to the                             
               [grandfathered] trust after September 25, 1985”.  TRA                  
               1986 sec. 1433(b)(2)(A).  Unlike a person who has                      
               irrevocably transferred money to a trust prior to the                  
               grandfathering date, a person who effects a transfer of                
               corpus to a grandfathered trust after that date is                     
               aware of (or should be aware of) the effects of the GST                
               tax.  Absent a restriction on post-grandfather-date                    
               transfers, an individual could utilize an existing                     
               grandfathered trust as a vehicle for passing additional                
               amounts to skip persons free of GST tax, even though                   
               these additional amounts had not been irrevocably                      
               committed to such a transfer as of September 25, 1985.                 
               Such a result would be contrary to the reliance purpose                
               underlying the grandfather clause.   *  *  *                           
                    Section 26.2601-1(b)(1)(v)(A), Temporary GST Tax                  
               Regs., supra, is consistent with the reliance purpose                  
               underlying TRA 1986 section 1433(b)(2)(A), and is                      
               therefore valid.  A person who holds a general power of                
               appointment over trust property maintains control over                 
               the ultimate disposition of that property and is, in                   
               practical effect, in a position similar to the actual                  
               owner of the property.  Estate of Kurz v. Commissioner,                
               101 T.C. 44, 50-51, 59-60 (1993), supplemented by T.C.                 
               Memo. 1994-221.  This is the rationale underlying the                  
               inclusion of such property in the gross estate of the                  
               holder of the power for purposes of the Federal estate                 
               tax.  Id.                                                              
                    Mrs. Peterson, as the holder of a testamentary                    
               general power of appointment, maintained effective                     
               control over the disposition of the property in the                    
               Marital Trust until her death in 1987.  Had she chosen                 
               to do so, Mrs. Peterson could have exercised the                       
               general power of appointment to cause the trust                        




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