Cite as: 520 U. S. 93 (1997)
O'Connor, J., concurring in judgment
ble as if the amount of a gift to the spouse were being determined. In determining the value of the interest in property passing to the spouse account must be taken of the effect of any material limitations upon her right to income from the property."
The text of the regulation leaves no doubt that only the "net value" of the spousal gift may be deducted. Moreover, there is little doubt that, in assessing this "net value," one should examine how the spousal devise would have been treated if it were instead an inter vivos gift. See 26 U. S. C. § 2056(b)(4)(A) (also referring to treatment of gifts).
The plurality latches onto 26 CFR § 25.2523(a)-1(e) (1996), and to the statutes and regulations to which it refers. Ante, at 101-102 (referring to 26 U. S. C. § 7520; 26 CFR § 20.2031-7 (1996)). In the plurality's view, these regulations define how to "tak[e] [account] of the effect of any material limitations upon [a spouse's] right to income from the property." 26 CFR § 20.2056(b)-4(a) (1996). The plurality frankly admits that these regulations do not speak directly to the antecedent inquiry—when an executor's right to allocate administrative expenses to income constitutes a "material limitation." Ante, at 106. The plurality nevertheless believes that these regulations bear indirectly on this inquiry by implying an underlying estate tax valuation theory that, in the plurality's view, dovetails nicely with our decision in Ithaca Trust Co. v. United States, 279 U. S. 151 (1929). Ante, at 102. It is on the basis of this valuation theory that the plurality is able to conclude that the Tax Court's analysis was wrong because that analysis did not, consistent with the plurality's theory, focus solely on anticipated administrative expenses and anticipated income. Ante, at 107-109. But, as Justice Scalia points out, the plurality's valuation theory is not universally applicable and, in fact, conflicts with the Commissioner's treatment of some other expenses. See 26 CFR § 20.2056(b)-4(c) (1996); post, at 133-136. Because § 25.2523(a)-1(e) and its accompanying provisions do no more
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