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SWIFT, J., concurring in part and dissenting in part:
On the public policy argument, I agree with the majority
opinion.
As to the technical disclaimer issue under section 2518
relating to the trust annuity, I believe the regulations, read
carefully and properly, along with a number of IRS private letter
rulings, would treat the disclaimer Hamilton made in favor of the
trust annuity as a qualifying disclaimer.
Section 25.2518-2(e)(3), Gift Tax Regs., describes in the
flush sentence and in subdivision (i) exactly the partial failure
that is applicable to Hamilton’s disclaimer, as follows:
§ 25.2518-2. Requirements for a qualified disclaimer.--
* * * * * * *
(e) Passage without direction by the disclaimant of
beneficial enjoyment of disclaimed interest.--
* * * * * * *
(3) Partial failure of disclaimer. If a
disclaimer made by a person other than the surviving
spouse is not effective to pass completely an interest
in property to a person other than the disclaimant
because--
(i) The disclaimant also has a right to receive
such property as an heir at law, residuary beneficiary,
or by any other means; and
(ii) The disclaimant does not effectively disclaim
these rights * * *
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