-56-
ascertainable and therefore severable and deductible.8 See sec.
20.2055-2(a), (e)(1) and (2)(vi), Estate Tax Regs.
I am not convinced that a different result is warranted
merely because the estate plan funded the Trust through a
disclaimer rather than directly in the will. I acknowledge the
slight textual distinction in the definitions of “severable
property” under the Gift Tax Regs., and “severable interest”
under the Estate Tax Regs.9, but do not find that it dictates a
different result.
The majority’s conclusion is even more anomalous when
considered in light of the general premise of disclaimers: a
disclaimant should be able to step back and be treated as never
having received the property. See sec. 2518(a). The majority’s
conclusion subverts gifts to charity simply because they were
made as a result of disclaimers rather than directly in the will.
8The majority’s statement in note 12 that the distinction
between an annuity interest and an income interest “makes no
difference” is especially troubling in light of the different
treatments prescribed for these interests. While a guaranteed
annuity interest is treated as ascertainable, severable and
deductible, an income interest is not a deductible interest under
these rules. See sec. 20.2055-2(e)(2), Estate Tax Regs.
9A remainder must be ascertainable to be considered
severable under the estate tax regulations. Sec. 20.2055-2(a),
Estate Tax Regs. As described supra part II, property must have
a complete and independent existence to be severable under the
Gift Tax Regulations we are considering. Sec. 25.2518-
3(a)(1)(ii), Gift Tax Regs.
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