concurring: I do not disagree with the decision of the majority to accede to the rulings of the. three Courts of Appeals that have considered this issue. In light, however, of respondent’s self-serving, interpretative, prospective-only regulation on this issue at section 20.2056(b)-7(d)(3), Estate Tax Regs, (promulgated in the midst of the rejection of respondent’s position by the Courts of Appeals for the Fifth, Sixth, and Eighth Circuits1), and in light of the many refund courts that are not bound by our ruling herein, nor by the rulings of the above three Courts of Appeals, further litigation of this, issue would appear inevitable.
As an alternative, therefore, to acceding to the extant rulings of the Courts of Appeals, I would go further, and I would reconsider our interpretation of the relevant QTIP provisions of section 2056(b)(7)(B), as follows.
Having the benefit of the analyses set forth in the above three Courts of Appeals’ rulings and the benefit of further reflection that continuing litigation provides, I believe that we erred in our' prior opinions in Estate of Clayton v. Commissioner, 97 T.C. 327 (1991), revd. 976 F.2d 1486 (5th Cir. 1992); Estate of Robertson v. Commissioner, 98 T.C. 678 (1992), revd. 15 F.3d 779 (8th Cir. 1994); and Estate of Spencer v. Commissioner, T.C. Memo. 1992-579, revd. 43 F.3d 226 (6th Cir. 1995), and I would so hold.
. Section 2056(b)(7)(B)(i) provides three general definitional requirements that must be satisfied in order to qualify property as QTIP property. Arguably, the first two (namely, whether property passed “from” the decedent and whether the surviving spouse “has” a qualifying income interest for life) could be determined on the date of decedent’s death.
However, the third requirement (namely, that the QTIP election has been made) obviously cannot be determined until the estate tax return is filed. On that date, one can also determine whether the first two requirements have been satisfied. It therefore seems logical to me to determine whether all three requirements of section 2056(b)(7)(B)(i) have been satisfied on the date the estate tax return is filed. That is the earliest date on which one could possibly determine whether all three requirements have been satisfied. Accordingly, that date ought to be used to determine whether each of the three requirements has been satisfied.
■ In contrast., to the technical arguments and hypothetical situations that are being made and raised on this issue, I agree with the refreshingly straightforward and commonsense approach of the Court of Appeals for the Sixth Circuit in Estate of Spencer v. Commissioner, supra. Therein, the Court of Appeals explained as follows:
Congress deliberately crafted the broad language of § 2056(b)(7)(B)(v): “An election under [§ 2056(b)(7)] with respect to any property shall be made by the executor on the return of tax imposed by § 2001.” * * * [Emphasis supplied by the Court of Appeals.] Congress did not use the words “any existing qualified terminable interest property” or “any property meeting the above definition as of the date of decedent’s death” or any similar limiting language, and we are not prepared to read such a limitation into this statute. The language “any property” should be given its ordinary meaning. Nowhere in the legislative history of § 2056(b)(7) do we find an indication that Congress intended a different reading of the statute. * * *
The words of the statute are plain: no property meets the definition of QTIP until the proper election is made, and no QTIP election can be made until the estate tax form is filed. § 2056(b)(7)(B)(v). Since no property can be QTIP until the election is made, the proper date to determine if property satisfies the requirement of § 2056(b)(7) is on the date.of the election.
Section 2056(b)(7) creates a new and different legislative scheme. Under the election provision, no property anywhere can be considered QTIP until an election is made by the executor on Form 706, which can only be done after the date of death. When the Commissioner’s interpretation is carried to its logical extent, no property could ever satisfy the statutory definition of QTIP because the election for the surviving spouse cannot be made until after the date of decedent’s death. This simple fact highlights the major problem with the Commissioner’s interpretation of § 2056(b)(7).
The IRS would have us adopt an interpretation that would force property to satisfy every requirement for the QTIP counter-exception on the date of decedent’s death except the requirement of election. This would effectively reduce the election requirement to a mere formality, defeat its apparent.purpose and its most reasonable interpretation. * * * * * * ■■!! :|: * :|:
This decision is in keeping with the overarching purpose of Congress to liberalize the requirements surrounding the marital deduction. The 1981 amendments to § 2056 made a number of changes, each of which expanded the scope of the marital deduction. In this spirit, we think an interpretation favoring the allowance of the deduction is in keeping with Congressional intent. It recognizes that wills are often drafted long in advance of death and that family situations and the value of assets may change dramatically. There is no reason to interpret § 2056(b)(7) to require that the will identify QTIP property long in advance of death and thereby deny taxpayers the full advantage of the marital deduction for QTIP property. The election provision is plain enough and seems purposely worded to avoid this estate planning problem.
[43 F.3d at 230-233.]
In the QTIP definitional requirements of section 2056(b)(7)(B), because it is the first date on which the claimed QTIP property could possibly qualify under section 2056(b)(7)(B), the date on which the estate tax return is filed is the only directly relevant date. If, on that date, all of the requirements have been satisfied (namely, the property passed from the decedent, the surviving spouse then has a qualifying income interest for life, and the election has been made on the return), the property should “be treated”, see sec. 2056(b)(7)(A)(i), as fully meeting the definitional requirements of section 2056(b)(7)(B).
Based on the above analysis, I would overrule our prior opinions in Estate of Clayton v. Commissioner, supra, Estate of Robertson v. Commissioner, supra, and Estate of Spencer v. Commissioner, supra, and I would adopt the analysis set forth in the Coyxt of Appeals for the Sixth Circuit’s opinion in Estate of Spencer v. Commissioner, supra.
Hamblen and Whalen, JJ., agree with this concurring opinion.See T.D. 8522, 1994-1-C.B. 236, 238, promulgated on Feb. 28, 1994, effective with respect to estates of decedents dying after Mar. 1, 1994.