Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 57

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               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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