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KROUPA, J., concurring in part and dissenting in part:
I do not dispute any of the findings of fact used by the
majority in its analysis. As the trial Judge who was able to
weigh the credibility of the witnesses, however, I found
Christiansen and her daughter’s charitable intent compelling.
They both intended to use their wealth to benefit the people of
South Dakota and improve the economic and social conditions
there. Unfortunately, the majority gives lip service to these
important charitable objectives in part I to deny the estate the
benefit of a charitable contribution deduction because of the
majority’s flawed interpretation of the regulation. I would hold
that the estate is entitled to deduct the amounts passing to the
Trust to the extent of the annuity portion.
I do agree with the majority, however, that we should allow
a deduction for the amounts passing directly to the Foundation
and therefore concur with part II of the majority opinion.
I. Analysis of the Regulation on Partial Disclaimers
Now to the several reasons I disagree with the majority’s
holding that the estate is not entitled to deduct the value of
the disclaimed property that passed, at Christiansen’s direction,
to the Trust. We are dealing with the annuity portion of the
Trust as the parties do not dispute, nor has the estate claimed,
a deduction for the amount attributable to the contingent
remainder.
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