- 57 -
The cases of Simpson v. United States, supra, and Bachler v.
United States, supra, also are factually distinguishable from the
case of Peterson Marital Trust v. Commissioner, supra. The cases
of Simpson and Bachler, like the present case, involved the
exercise of a power of appointment and the question of whether
the exercise was a transfer under a trust; the case of Peterson
Marital Trust involved the lapse of a power of appointment and
the question of whether the lapse added corpus to the trust. As
the Courts of Appeals noted in Simpson v. United States, supra at
815-816, and Bachler v. United States, supra at 1080, this
critical point sufficiently distinguished those two cases from
Peterson Marital Trust and the holding thereof. See also Simpson
v. United States, supra at 815 (“The distinction between Peterson
and the present case is obvious.”). The courts also noted that
the lapse in Peterson Marital Trust was governed by a temporary
regulation that stated what constituted “corpus added to the
trust” and that the exercise of the power of appointment was
outside of that regulation in that the exercise depleted, rather
than added, to the trust’s corpus. See Bachler v. United States,
supra at 1080; Simpson v. United States, supra at 815-816.
In closing, I believe that the Court in this case should
apply the plain and unambiguous reading of the general rule,
consistent with the reading of the Courts of Appeals for the
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