Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 25




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          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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