Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 41

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          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.”                                                         




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