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D. Effect of the Savings Clause
That leaves the savings clause as the only obstacle to the
Commissioner’s prevailing. That clause says that Hamilton--at
the time she signed the disclaimer--“hereby takes such actions to
the extent necessary to make the disclaimer set forth above a
qualified disclaimer.” Hamilton argues that she intended to do
whatever it took to qualify the transfer to the Trust for the
charitable deduction--and if that means she has to disclaim her
contingent-remainder interest, then this clause suffices to
disclaim it. This would be a paradox, since it was this same
partial disclaimer excluding the contingent remainder from its
scope that would, on her reading of the savings clause, end up
including it after all.
The parties to-and-fro on whether this kind of clause
violates public policy, but we don’t think we have to decide this
question at that level of generality. The savings clause works
in one of two ways. If read as a promise that, once we enter
decision in this case, Hamilton will then disclaim her contingent
remainder in some more of the property that her mother left her,
it fails as a qualified disclaimer under section 2518(b)(2) as
one made more than nine months after her mother’s death. See
sec. 25.2518-2(c)(3)(i), Gift Tax Regs. If it’s read as somehow
meaning that Hamilton disclaimed the contingent remainder back
when she signed the disclaimer, it fails for not identifying the
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