Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 32

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               The only relevant transfer of property that occurred “under”           
          the trust was effectively made to the surviving spouse upon                 
          creation of the trust and the grant to her of a general power of            
          appointment.  Thereafter, the surviving spouse made a separate,             
          independent, discretionary, and subsequent skip transfer of                 
          property to grandchildren, which transfer was made and occurred             
          under the general power of appointment, not under the trust.                
               Under a proper understanding of TRA 1986 section                       
          1433(b)(2)(A) of the general power of appointment transferred to            
          Mrs. Gerson, and of the property transfer that occurred when Mrs.           
          Gerson exercised her general power of appointment, the result               
          reached by the majority herein is correct and should be reached             
          even if the regulations at issue had never been promulgated.                

          (2) The Second Circuit’s Opinion in Peterson Marital Trust                  
               In Peterson Marital Trust v. Commissioner, supra, the Court            
          of Appeals for the Second Circuit held that the mere lapse of a             
          general power of appointment held by a surviving spouse and the             
          resulting transfer of property to a skip generation triggered a             
          post-September 25, 1985, taxable generation-skipping transfer.              
          If the mere lapse of a general power of appointment triggers a              
          taxable generation-skipping transfer of property, certainly it              
          should follow that the affirmative exercise of a general power of           








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