Cite as: 520 U. S. 93 (1997)
O'Connor, J., concurring in judgment
types of expenses are inevitable once the estate is open because it is virtually impossible to close an estate in a day so as to avoid the deferral of estate tax payments or the incursion of some administration expenses. Although both can theoretically be avoided if an executor donates his time or pays up front what he estimates the estate tax to be, this will not often occur. Both types of expenses are, moreover, of uncertain amount on the date of death. Because these two types of expenses are so similar in relevant ways, in my view they should be treated the same under § 20.2056(b)-4(a) and Ruling 93-48, despite the Commissioner's limitation on the applicability of Revenue Ruling 93-48 to interest on deferred estate taxes.
But more important, the Commissioner's treatment of interest on deferred estate taxes in Revenue Ruling 93-48 indicates her rejection of the notion that every financial burden on a marital bequest's postmortem income is a material limitation warranting a reduction in the marital deduction. That the Ruling purports to apply not only to income but also to principal, and may therefore deviate from the accepted rule regarding payment of expenses from principal, see supra, at 112-113, does not undercut the relevance of the Ruling's implications as to income. Post, at 130 (Scalia, J., dissenting). Thus, some financial burdens on the spouse's right to postmortem income will reduce the marital deduction; others will not. The line between the two does not, as Justice Scalia contends, depend upon the relevance of the limitation on the spouse's right to income to the value of the marital bequest, post, at 128-129, since interest on deferred estate taxes surely reduces, and is therefore relevant to, "the value of what passes," post, at 128 (emphasis deleted). By virtue of Revenue Ruling 93-48, the Commissioner has instead created a quantitative rule for § 20.2056(b)-4(a). That a limitation affects the marital deduction only upon reaching a certain quantum of substantiality is not a concept alien to the law of taxation; such rules are quite common.
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