-25-
itself was contingent in the sense of dependent for its
occurrence on a future event. Resolution of a dispute about the
fair market value of assets on the date Christiansen died depends
only on a settlement or final adjudication of a dispute about the
past, not the happening of some event in the future. Our Court
is routinely called upon to decide the fair market value of
property donated to charity--for gift, income, or estate tax
purposes. And the result can be an increase, a decrease, or no
change in the IRS’s initial determination.14
B. Public Policy Concerns
The Commissioner finally argues that the disclaimer’s
adjustment clause is void on public policy grounds because it
would, at the margins, discourage the IRS from examining estate
tax returns because any deficiency in estate tax would just end
up being offset by an equivalent additional charitable deduction.
It is true that public policy considerations sometimes
inform the construction of tax law as they do other areas of law.
For example, section 178 of the Restatement (Second) of Contracts
(1981) has a multifactor test for when a promise or a contractual
14 The estate also quite pointedly notes that the
Government itself uses the contested phrase: The charitable
annuity trust regulations make an interest determinable even if
the amount to be paid is expressed “in terms of a fraction or a
percentage of the net fair market value, as finally determined
for Federal estate tax purposes, of the residue of the estate on
the appropriate valuation date.” Sec. 20.2055-2(e)(2)(vi)(a),
Estate Tax Regs.; see also, e.g., sec. 26.2632-1(b)(2), (d)(1)
GST Regs.; Rev. Proc. 64-19, 1964-1 C.B. (Part 1) 682.
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