Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 15




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          Trust’s property mean that the property being disclaimed was not            
          going “to a person other than the person making the disclaimer?”            
          The Commissioner argues that the disclaimed property did not pass           
          (or, to be more precise, pass only) to a person other than                  
          Hamilton.  See sec. 2518(b)(4); sec. 25.2518-2(e)(3), Gift Tax              
          Regs.                                                                       
               The applicable regulation is section 25.2518-2(e)(3), Gift             
          Tax Regs., and the key provision is this one:                               
                         (3) Partial failure of disclaimer.  If a                     
                    disclaimer made by a person other than the                        
                    surviving spouse is not effective to pass                         
                    completely an interest in property to a                           
                    person other than the disclaimant because-–                       
                         (i) The disclaimant also has a right to                      
                    receive such property as an heir at law,                          
                    residuary beneficiary, or by any other means;                     
                    and                                                               
                         (ii) The disclaimant does not                                
                    effectively disclaim these rights, the                            
                    disclaimer is not a qualified disclaimer with                     
                    respect to the portion of the disclaimed                          
                    property which the disclaimant has a right to                     
                    receive * * *.                                                    
               If the regulation stopped here, the estate would win--                 
          everyone agrees that the partial disclaimer’s carveout of a                 
          contingent remainder means that the estate can’t deduct the value           
          of that remainder interest.  But the regulation doesn’t stop                
          there.  Instead, it continues:                                              
                    If the portion of the disclaimed interest in                      
                    property which the disclaimant has a right to                     
                    receive is not severable property or an                           
                    undivided portion of the property, then the                       






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Last modified: March 27, 2008