-48-
(8), (11), Gift Tax Regs. Sometimes the disclaimer is not
qualified (i.e., if the property is nonseverable). See sec.
25.2518-3(d), Example (10), Gift Tax Regs. The majority
interpretation does not account for the different results in
these examples.
The majority relies on a decedent’s creation of the interest
in a will, not a trust, to differentiate Examples (8) and (11) of
section 25.2518-3(d), Gift Tax Regs., from the italicized
sentence. The distinction of whether the separate interest is
created in a will or in a trust is irrelevant. We should not
interpret the regulation to require the interest to be created in
a will. The transferor, not the disclaimant, must create the
separate interests, but it is of no moment how they were created.
Sec. 25.2518-3(a)(1), Gift Tax Regs. Consistent with the
regulation, Christiansen, the transferor, not her daughter,
created the annuity and contingent remainder interests when
Christiansen created the Trust. These interests are thus
separate interests. Id. I would find that Christiansen, not her
daughter, was the transferor. There is no requirement in the
regulation that the interest be created in a will.
All Christiansen’s daughter did was to disclaim a fractional
portion of the property passing to her in the will. She did not
create or carve out a particular interest for herself and
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