108
Opinion of Kennedy, J.
tween expected and actual income and expenses. Judge Halpern's opinion, joined by Judge Beghe, explained:
"I believe the majority is undone by its view that income earned on estate property is not included in the gross estate. Once it is accepted that income earned on estate property (as anticipated at the appropriate valuation date) is included in the gross estate, the next question is whether, but for the use of such income to pay administration expenses, it would be received by the surviving spouse or charitable beneficiary. If the answer is yes, then it follows easily that, when such income is used for administration expenses, rather than received by the surviving spouse or charitable beneficiary, the value of the interest passing from the decedent to the surviving spouse or charitable beneficiary is decreased." Id., at 342-343 (opinion concurring in part and dissenting in part).
The Tax Court dissenters recognized that only anticipated, not actual, income is included in the gross estate, as the gross estate is based on date-of-death value. See also id., at 342, n. 5 (opinion of Halpern, J.) ("It is true, of course, that income actually earned on . . . property [included in valuing the gross estate] during the period of estate administration is not included in the gross estate. The gross estate, however, does include the discounted value of post mortem income expected to be earned during estate administration" (emphasis deleted)). The dissenters failed to recognize that following their own logic, as a general rule, assuming compliance with § 20.2056(b)-4(a)'s limitation to relevant facts on the controlling valuation date, only anticipated administration expenses payable from income, not the actual ones, affect the date-of-death value of the marital or charitable bequests. The dissenters were, in a sense, a step closer to § 25.2523(a)-1(e)'s present-value approach than the Commissioner, for they would have required the estate to reduce the marital or char-
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