Cite as: 520 U. S. 93 (1997)
Scalia, J., dissenting
(4)(A), the provision requiring the marital deduction to be reduced to take account of the effect of estate and inheritance taxes, make it clear that the actual amounts of those taxes control. See 26 CFR § 20.2056(b)-4(c) (1996). (With respect to the charitable deduction, the requirement that actual amounts be used is apparent on the face of the statute itself, see 26 U. S. C. § 2055(c).) Moreover, the language of § 2056(b)(4)(A) is quite similar to the language of the regulation at issue here, § 20.2056(b)-4(a), suggesting that the latter, like the former, should be interpreted to require consideration of actual, rather than merely expected, administration expenses. Compare 26 U. S. C. § 2056(b)(4)(A) ("[T]here shall be taken into account the effect which the tax imposed by section 2001, or any estate [tax], has on the net value to the surviving spouse of such interest" (emphasis added)) with 26 CFR § 20.2056(b)-4(a) (1996) ("The marital deduction may be taken only with respect to the net value of any deductible interest which passed from the decedent to his surviving spouse . . . . 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 [the spouse's] right to income" (emphasis added)).
In short, the plurality's general theory concerning valuation is contradicted by provisions of both the Code and regulations. It is also plagued by a number of practical problems. Most prominently, the plurality's rule is simply unadministrable. It requires the Internal Revenue Service and courts to engage in a peculiar, nunc pro tunc, three-stage investigation into what would have been believed on the date of death of the decedent. This highly speculative inquiry begins, I presume, with an examination of the various possible administration expenditures multiplied by the likelihood that they would actually come into being (for example, estimating the chances that a will contest would develop). Next, one must calculate the expected future income from the bequest. Finally, one must determine if,
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