-47-
severable property from those of nonseverable property. The
remainder in the example must be viewed as nonseverable property
to give effect to the rest of the regulation.2 Indeed, the
sentence in the regulation, immediately before the italicized
sentence, provides:
If the portion of the disclaimed interest in property which
the disclaimant has a right to receive is not severable
property or an undivided portion of the property, then the
disclaimer is not a qualified disclaimer with respect to any
portion of the property * * *
Sec. 25.2518-2(e)(3), Gift Tax Regs. (emphasis added). The
majority’s interpretation simply disqualifies the entire
disclaimer if the disclaimant has a right to receive any
disclaimed property, severable or not, in the form of a trust
remainder.
The majority’s interpretation is difficult to reconcile with
some of the examples in section 25.2518-3(d), Gift Tax Regs. The
examples turn on whether the property is severable or
nonseverable. Sometimes the disclaimer is qualified (i.e., if
the property is severable).3 See sec. 25.2518-3(d), Examples
2The example in sec. 25.2518-2(e)(3), Gift Tax Regs., was
not in the proposed regulations. 45 Fed. Reg. 48928 (July 22,
1980). The example was added in the final regulations, released
6 years later. There is no discussion of this example in the
Treasury Decision accompanying the final regulations. T.D. 8095,
1986-2 C.B. 160.
3The Commissioner’s ruling positions also support this
premise. See, e.g., Tech. Adv. Mem. 96-10-005 (Nov. 9, 1995);
Priv. Ltr. Rul. 98-52-034 (Sept. 29, 1998).
Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Next
Last modified: March 27, 2008