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SWIFT, J., concurring: The majority opinion is too
circumspect in discussing the erroneous interpretations of
section 1433(b)(2)(A) of the Tax Reform Act of 1986 (TRA 1986),
Pub. L. 99-514, 100 Stat. 2731, by the Courts of Appeals in
Simpson v. United States, 183 F.3d 812 (8th Cir. 1999), and in
Bachler v. United States, 281 F.3d 1078 (9th Cir. 2002).
In the above opinions, the Courts of Appeals for the Eighth
and Ninth Circuits make at least two serious mistakes: (1) They
merge and confuse the relevant transfers that are to be
considered under the grandfather exception of section
1433(b)(2)(A); and (2) they improperly distinguish and limit
Peterson Marital Trust v. Commissioner, 78 F.3d 795 (2d Cir.
1996), affg. 102 T.C. 790 (1994).
(1) The Relevant Transfers
The Court of Appeals for the Eighth Circuit in Simpson v.
United States, supra at 813, begins its analysis by correctly
stating that --
the general rule [of section 1433] * * * would apply
[the GST tax] to any transfer taking place after the
enactment of the statute * * * .
In the very next paragraph of its opinion, however, the
Court of Appeals merges the transfer that took place in that case
after September 25, 1985, with the earlier transfer that took
place therein in 1966 when the trust was created and the corpus
was transferred to the trust. The opinion states –-
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