-22-
property being disclaimed and not doing so unqualifiedly, see
sec. 2518(b), because its effect depends on our decision. Such
contingent clauses--contingent because they depend for their
effectiveness on a condition subsequent--are as ineffective as
disclaimers as they are for revocable spousal interests, see
Estate of Focardi v. Commissioner, T.C. Memo. 2006-56, and gift
adjustment agreements, see Ward v. Commissioner, 87 T.C. 78, 110-
11 (1986).
II. The Disclaimer in Favor of the Foundation
In the notice of deficiency, the Commissioner had no problem
with the possibility of an increased charitable deduction for
property going directly to the Foundation:
In the event that it is determined that the
“partial disclaimer” * * * is a “qualified
disclaimer” then the transfer reported as
passing to the [Foundation] * * * is in an
amount that cannot be ascertained with
certainty at this time. However, when the
other issues are finally resolved, this
calculation can be made and a deduction
allowed for the proper amount.
Not content with denying the estate a deduction for any
portion of the disclaimed property passing to the Trust, the
Commissioner now challenges the increased charitable deduction
that the estate seeks (because the parties have agreed on a much
higher value of the gross estate) for the transfer of property to
the Foundation directly. This would have the remarkable effect
of greatly increasing the estate tax due because more valuable
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