-23- 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 sectionPage: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: March 27, 2008