-35-
Hamilton did not disclaim her right to receive the remainder
of the portion of the disclaimed property that passes to the
trust. Consequently, the disclaimer is not a qualified
disclaimer with respect to Hamilton’s contingent remainder
interest. See sec. 25.2518-2(e)(3), Gift Tax Regs.
Hamilton’s contingent remainder is an interest in the
$2,421,671 portion of the disclaimed property that passes to the
trust. That contingent remainder is not an undivided portion of
the disclaimed property that passes to the trust. Consequently,
unless Hamilton’s remainder interest is a severable property
interest, her disclaimer is not a qualified disclaimer with
respect to the entire interest passing to the trust. See id.
In order to be treated as severable property, the
foundation’s guaranteed annuity and Hamilton’s remainder, after
severance, must maintain “a complete and independent existence.”1
See sec. 25.2518-3(a)(1)(ii), Gift Tax Regs. In the dissenting
portion of his opinion, Judge Swift posits that in assessing
whether the interests have a separate and independent existence,
one key factor is whether each interest, taken separately, has an
ascertainable value. Judge Swift quotes the first sentence of
section 20.2055-2(a), Estate Tax Regs., which provides:
1“[I]ndependent” is defined as: “not requiring or relying
on something else (as for existence, operation, efficiency): not
contingent: not conditioned”. Webster’s Third New International
Dictionary 1148 (2002).
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