Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 23




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          property is passing to a charity, even though Hamilton is keeping           
          no interest at all in that property.                                        
               The Commissioner has two arguments: (1) that any increase in           
          that amount was contingent on a condition subsequent; i.e., the             
          Commissioner’s challenge to the value of the gross estate, and              
          (2) that the disclaimer’s adjustment phrase--that the fair market           
          value of the disclaimed property will be “as such value is                  
          finally determined for federal estate tax purposes”--is void as             
          contrary to public policy.                                                  
               A.   The Contingency of the Amount Transferred to the                  
                    Foundation                                                        
               The Commissioner argues that the deductibility of a                    
          “testamentary charitable contribution hinges upon whether the               
          amount that the charity will receive is ascertainable at the                
          decedent’s date of death.”  And he can point to section 20.2055-            
          2(b)(1), Estate Tax Regs., which states that if                             
                    as of the date of a decedent’s death, a                           
                    transfer for charitable purposes is dependent                     
                    upon the performance of some act or the                           
                    happening of a precedent event in order that                      
                    it might become effective, no deduction is                        
                    allowable unless the possibility that the                         
                    charitable transfer will not become effective                     
                    is so remote as to be negligible.                                 
               The first problem with this argument is that the transfer of           
          property to the Foundation was not a “testamentary charitable               
          contribution”--it was the result of a disclaimer.  And                      
          disclaimers are in a special category, governed not by section              







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