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THORNTON, J., concurring: Under the subject transitional
rule, a generation-skipping transfer escapes the effects of the
1986 amendments to the generation-skipping transfer (GST) tax if
it is a “generation-skipping transfer under a trust which was
irrevocable on September 25, 1985”. See Tax Reform Act of 1986,
Pub. L. 99-514, sec. 1433(b)(2)(A), 100 Stat. 2731. This
language has been interpreted as referring: (1) Narrowly to a
generation-skipping transfer that is pursuant to the terms of the
trust agreement; and (2) more broadly, to any generation-skipping
transfer that is made possible under the terms of the trust
agreement, for instance, through the exercise of a general power
of appointment pursuant to the trust agreement. The disputed
regulations and the majority opinion endorse the first reading.
Two Courts of Appeals have endorsed the second reading. Bachler
v. United States, 281 F.3d 1078 (9th Cir. 2002); Simpson v.
United States, 183 F.3d 812 (8th Cir. 1999). For the reasons
discussed below, I believe the disputed regulations and the
majority report are correct.
The “cardinal rule” of statutory construction requires us
“to give effect, if possible, to every clause and word of a
statute.” United States v. Menasche, 348 U.S. 528, 538-539
(1955) (internal quotations omitted). In parsing the
transitional rule, Bachler and Simpson went astray by failing to
give effect to the modifying language “generation-skipping” that
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