-52-
indistinguishable. See majority op. p. 19. Not so. There are
many key differences.
The disclaimant in Walshire disclaimed a remainder interest
in property but retained the right to the income and use of the
property during his lifetime. Walshire v. United States, supra
at 347. The disclaimant thus divided the property into parts
that did not maintain a complete and independent existence and
were therefore not severable property. See sec. 25.2518-
3(a)(1)(ii), Gift Tax Regs. For example, if the disclaimant in
Walshire had significantly used the property under the retained
life estate, the corresponding value of the remainder might have
been affected.4
The thoughtful analysis of the U.S. Court of Appeals for the
Eighth Circuit in concluding that the disclaimer in Walshire was
not qualified is markedly different from the majority’s analysis
here. The majority errs to suggest that the distinction between
an annuity interest and an income interest “makes no difference.”
See majority op. note 12. The annuity and the contingent
remainder in this case are truly complete and independent from
one another and are therefore severable property. See sec.
4The property in Walshire v. United States, 288 F.3d 342
(8th Cir. 2002), consisted of certificates of deposit (CDs). Had
the disclaimant, for example, pledged the CDs as security for a
loan and then failed to satisfy his obligations under the loan,
the CDs could have been cashed early, and the resulting penalty
would have diminished the size of the principal left to the
remainderman.
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