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the interpretation reflected in the majority opinion herein, are
consistent and uniform. Under those interpretations, post-
September 25, 1985, exercises of general powers of appointment in
favor of skip donees do not qualify for the TRA 1986 section
1433(b)(2)(A) grandfather provision, and they trigger the GST
tax.
Peterson Marital Trust is not distinguishable and supports
the majority’s opinion herein.
Respectfully, in the above two respects the United States
Courts of Appeals for the Eighth and the Ninth Circuits in
Simpson and in Bachler erred in their analyses of TRA 1986
section 1433(b)(2)(A).
A few concluding comments are appropriate. It has been
recently suggested that the Secretary and respondent are misusing
their administrative regulatory authority to “bootstrap” (Judge
Laro’s dissent, infra p. 50 note 1) or overcome a “failed
litigating position” (Swallows Holding v. Commissioner, 126 T.C.
96, 148 (2006)). In my opinion, these suggestions are
inappropriate and incorrect.
Under section 7805(a), Congress has given the Secretary and
respondent important authority and responsibility to assist in
the administration of our Federal income tax laws through the
promulgation of regulations. The suggestion that the Secretary
and respondent are somehow misusing this authority and
responsibility undermines their important role in this regard.
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