Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 30




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               HAINES and GOEKE, JJ., concurring:  We join in the majority            
          opinion but write separately to elaborate on why Hamilton’s                 
          remainder interest in the trust and the foundation’s 20-year                
          annuity are not severable property for purposes of qualifying the           
          disclaimer with respect to the portion of the disclaimed property           
          that will pass to the trust.                                                
               Because disclaimers result in gratuitous transfers of                  
          property, the gift tax generally applies to transfers resulting             
          from disclaimers.  See sec. 2511(a).  Section 2518 provides an              
          exception which allows a disclaimant to avoid the second transfer           
          tax for a transfer of an interest in property resulting from a              
          qualified disclaimer.  Walshire v. United States, 288 F.3d 342,             
          349 (8th Cir. 2002).  A disclaimer is not a qualified disclaimer            
          if the disclaimant has accepted the interest or any of its                  
          benefits, sec. 2518(b)(3), or if the interest passes to the                 
          disclaimant and the disclaimant is not the surviving spouse of              
          the decedent, sec. 2518(b)(4).                                              
               Although section 2518(b)(3) disqualifies a disclaimer if the           
          disclaimant has accepted the interest or any of its benefits,               
          section 2518(c) permits a putative transferee to make a qualified           
          disclaimer of an undivided portion of an interest in property               
          provided the disclaimer meets the requirements of section                   
          2518(b); i.e., a disclaimer of an undivided interest will not be            
          disqualified just because the disclaimant has retained the                  
          remaining undivided portion of the property.  The transferee,               





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