-39-
beneficiary will never include corpus. Thus, an annuity interest
and a remainder interest are more dependent on each other than an
income interest and a remainder interest.
While the values of an annuity interest and a remainder
interest may be ascertained, if separated they do not maintain a
complete and independent existence in the way that 300 head of
cattle are independent of the remaining 200. Therefore, the
annuity interest and the remainder interest are not severable
within the meaning of section 25.2518-3(a)(1)(ii), Gift Tax Regs.
Section 25.2518-2(e)(3), Gift Tax Regs., provides that if
the portion of the disclaimed property which the disclaimant has
a right to receive (Hamilton’s remainder interest) is not
severable property or an undivided portion of property, the
disclaimer is not qualified with respect to any portion of the
property (the $2,421,671 that passes to the trust). As explained
above, Hamilton’s remainder interest is not severable property or
an undivided portion of property. Therefore, the disclaimer is
not a qualified disclaimer with respect to the $2,421,671 passing
to the trust.
COHEN, FOLEY, THORNTON, MARVEL, WHERRY, and HOLMES, JJ.,
agree with this concurring opinion.
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