- 41 - another person, that person is substituted for the “transferor”. See Bittker & Lokken, supra par. 133.2.2. Under section 2041, if a decedent holds a general power of appointment, the property subject to the power is included in the decedent’s gross estate. Consequently, for GST tax purposes the holder of such a power is the transferor of the property.1 See Peterson Marital Trust v. Commissioner, 102 T.C. 790, 794, 805 (1994), affd. 78 F.3d 795 (2d Cir. 1996). In the instant case, the appointive property under Mrs. Gerson’s general power of appointment was includable in her gross estate pursuant to section 2041. Consequently, for GST tax purposes, she was the “transferor” of this property. Under section 2652(a), she (and not the grantor of the trust, Mr. Gerson) is treated as transferring this property.2 Thus, notwithstanding that Mrs. Gerson’s power of appointment arose 1 By contrast, if a decedent holds a nongeneral power of appointment (i.e., a limited or special power of appointment), the appointive property is not taxable under sec. 2041. See Bittker & Lokken, Federal Taxation of Income, Estates & Gifts, par. 128.1, at 128-5 (2d ed. 1993). Consequently, in the case of property passing pursuant to a nongeneral power of appointment, the power holder would not be the “transferor” for purposes of the GST tax. 2 Consistent with this view, there appears to be no dispute that the relevant generation-skipping transfer is the “direct skip” from Mrs. Gerson to her grandchildren, rather than any “taxable distribution” from the trust. As the majority opinion states, majority op. p. 6, “The parties do not dispute that a transfer from decedent [Mrs. Gerson] directly to her grandchildren, skipping over decedent’s children, normally would be subject to GST.”Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
Last modified: May 25, 2011