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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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