dissenting: I respectfully dissent. Although I have joined in Judge Beghe’s dissenting opinion, I write separately to propose an alternative theory which would uphold respondent without requiring us to overrule our prior precedent or to disagree with the Court of Appeals for the Ninth Circuit.
In Estate of Howard v. Commissioner, 91 T.C. 329 (1988), revd. 910 F.2d 633 (9th Cir. 1990), the period of limitations had not expired on either the husband’s or wife’s estate. The issue was simply in which estate the trust corpus should be included. There was never any doubt that it should be included in one estate or the other. Once the QTIP status was determined for the first decedent, the result as to the spouse automatically followed. Thus, although we were reversed by the Court of Appeals, both courts reached internally consistent results.
Here, under the majority opinion, we have an anomalous (and, in my view, unjust) result. Approximately $2,829,710 (the corpus of the Number Two Trust) escapes taxation altogether.
The majority claims the plain meaning of the statute compels the result it reaches. However, the Supreme Court has stated in United States v. American Trucking Associations, 310 U.S. 534, 543 (1940):
There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words. * * * [Fn. ref. omitted.]
Here we have a result that is plainly at variance with the policy of the legislation as a whole. The legislative history shows that the intent of Congress was that “a husband and wife should be treated as one economic unit for purposes of estate and gift taxes.” S. Rept. 97-144 (1981), 1981-2 C.B. 412, 461.
The intent to treat the husband and wife as one economic unit is further shown in the statutory scheme itself. Section 2056(b)(7)(B)(v) states that a QTIP election, once made, “shall be irrevocable.” I believe that language reflects an intent to fix for all time and all purposes the tax status of an interest in property passing from the first decedent to the spouse, as elected by the first decedent’s estate. It was never Congress’ intent that the spouse could then contest that election after that very spouse had obtained the benefit of the use of the property, which would have otherwise been included in the first decedent’s estate had the election not been made.
Here the election was made and allowed by the Internal Revenue Service, and now the beneficiary of that election (i.e., the spouse) is being allowed to revoke it.
I am aware that the estate of the second spouse is, technically, a different taxpayer than the estate of the first spouse. However, as shown by section 2044, it was not Congress’ intent to allow the election to be challenged after the benefit had been enjoyed. That section provides that the value of the gross estate (of the second spouse) shall include the value of any property in which the decedent had a qualifying income interest for life. Sec. 2044(a). The provision applies to any property if a deduction was allowed with respect to the transfer of such property to the decedent under section 2056 by reason of subsection (b)(7). Sec. 2044(b)(1)(A). That is exactly the situation we have before us.
The majority finds that the QTIP election was improperly allowed by respondent in the husband’s case, and therefore none of this applies. I believe we are straining at a gnat and swallowing a camel. The fact is, the deduction was claimed and allowed, and the tax benefit was enjoyed by the very petitioner now before us.
Courts, including this one, have evolved judge-made doctrines such as estoppel, the duty of consistency, and the tax benefit rule to deal with similar situations of unjust enrichment. For example, the tax benefit rule provides that an amount deducted from gross income in one year is included in income in a subsequent year if an event occurs in the subsequent year that is fundamentally inconsistent with the premise on which the deduction had previously been based. Hillsboro Natl. Bank v. Commissioner, 460 U.S. 370 (1983).
Here we have two different taxpayers, but a single economic unit and a single pot of money. Under these circumstances, I would hold that the qtip election, once made and allowed (whether technically correct or not), is irrevocable and determinative.
Parker and Jacobs, JJ., agree with this dissent.