-51-
over a fixed period, not full present enjoyment of the whole
property as might be found in, for example, a life estate. See,
e.g., Abeid v. Commissioner, 122 T.C. 404, 408-409 (2004)
(describing differences in the definition of annuity between
section 7520 and the U.S.-Israel income tax treaty). To adopt
the pastry analogy of the majority, an annuity interest is a
separate cupcake.
The majority implies several times that Christiansen’s
daughter disclaimed an income interest, or present enjoyment, in
the Trust and kept a remainder. In reality, however,
Christiansen’s daughter did no such thing. It was pursuant to
Christiansen’s will that any amount her daughter disclaimed would
go 75 percent to the Trust and 25 percent to the Foundation. If
we accepted the majority’s implication that Christiansen’s
daughter disclaimed a portion and retained a remainder, those
facts here would fit squarely within Examples (8) and (11) of
section 25.2518-3(d), Gift Tax Regs. The disclaimer in each of
these examples is qualified, as should be the disclaimer at issue
here.
The majority’s mischaracterization of the type of interest
passing to the Foundation pursuant to the Trust as an income
interest or present enjoyment rather than an annuity also leads
to the majority’s faulty reliance on Walshire v. United States,
288 F.3d 342 (8th Cir. 2002). The majority says that Walshire is
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