Cite as: 520 U. S. 93 (1997)
O'Connor, J., concurring in judgment
quest when the actual administrative expenses are allocated to income with the projected income stream when the expenses are allocated to principal. App. to Brief for American College of Trust and Estate Counsel as Amicus Curiae 1-2. The plurality, drawing upon its valuation theory, supra, at 115, looks to whether the "date-of-death value of the expected future administration expenses chargeable to income . . . [is] material as compared with the date-of-death value of the expected future income." Ante, at 110. None of these tests specifies with any particularity when the threshold of materiality is crossed. Cf. 26 U. S. C. § 2503(b) (setting $10,000 annual minimum before gift tax liability attaches). The proliferation of possible tests only underscores the need for the Commissioner's guidance. In its absence, the Tax Court's approach is as consistent with the Code as any of the others, and provides no basis for reversal.
I share Justice Scalia's reluctance to find a $1.5 million diminution in postmortem income immaterial under any standard. Post, at 128-129. Were this Court considering the question of quantitative materiality in the first instance, I would be hard pressed not to find this amount "material" given the size of Mr. Hubert's estate. But the Tax Court in this case was effectively pre-empted from making such a finding by the Commissioner's litigation strategy. It appears from the record that the Commissioner elected to marshal all her resources behind the proposition that any diversion of postmortem income was material, and never presented any evidence or argued that $1.5 million was quantitatively material. See App. 58 (Stipulation of Agreed Issues) (setting forth Commissioner's argument); Brief for Respondent 47. Because she bore the burden of proving materiality (since her challenge to administrative expenses was omitted from the original notice of deficiency), Tax Court Rule 142(a), her failure of proof left the Tax Court with little choice but to reach its carefully crafted conclusion that $1.5 million was not quantitatively material on "the
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