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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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