124
Scalia, J., dissenting
administration expenses. The settlement agreement resolving the will contest, like Mr. Hubert's most recent will, provided that the estate's administration expenses would be paid from the residuary trusts, with the discretion given to the executor to apportion expenses between the income and principal of the residue. The marital bequest, which makes up some 52% of the residue, was thus plainly burdened with the obligation of paying 52% of the administration expenses of the estate. (The charitable bequest accounted for the remaining 48% of the residue.)
Our task under § 2056(b)(4)(B) is to determine how this obligation would affect the value of the marital bequest were the bequest an inter vivos gift. This seemingly rudimentary question proves difficult to answer. Both parties point to various provisions of the Internal Revenue Code and the Treasury Regulations, but these concern the quite different question whether a gift qualifies for the gift tax marital deduction; none discusses how the actual payment of administration expenses from income will affect the value of the gift tax marital deduction. See, e. g., Treas. Reg. §§ 25.2523(e)-1(f)(3) and (4), 26 CFR §§ 25.2523(e)-1(f)(3) and (4) (1996) (inclusion of the power to a trustee to allocate expenses of a trust between income and corpus will not disqualify the gift from the marital deduction so long as the spouse maintains substantial beneficial enjoyment of the income). The plurality seeks to derive some support from § 25.2523(a)-1(e), see ante, at 101-102, though it must acknowledge that "[t]he question presented here . . . is not controlled by the exact terms of [that regulation or the provisions to which it refers]," ante, at 101. Even going beyond its "exact terms," however, the regulation has no relevance. Like its counterparts in the estate tax provisions, see §§ 20.2031-1(b), 20.2031-7, it simply provides instruction on how to value the assets comprising the gift. It says nothing about how to take account of administration expenses. Indeed, the gross estate does not include anticipated adminis-
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