concurring.
I join the opinion of the court because I agree that the current 1986 version of Treas.Reg. § 25-2511 — 1(c)(2) does not apply in this case. Lucius Ordway’s creation of the trust in 1917 was not a taxable transfer. However, I am not as confident as the court that the government’s contentions are limited to the current version of the regulation. Therefore, I write separately to address whether the regulation in effect when Mrs. Irvine made her disclaimer applies to this case.
The regulation as initially promulgated in 1958 did not contain the current regulation’s reference to “taxable transfers.”1 It provided in relevant part:
Where the law governing the administration of the decedent’s estate gives a ben*997eficiary, heir, or next-of-kin a right to completely and unqualifiedly refuse to accept ownership of property transferred from a decedent ... a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a reasonable time after knowledge of the existence of the transfer. The refusal must be ... effective under the local law.... [I]f a person fails to refuse to accept a transfer to him of ownership of a decedent’s property within a reasonable time after learning of the existence of the transfer, he will be presumed to have accepted the property.
Treas.Reg. § 25.2511-l(c) (1958). With minor changes, this regulation was in effect in 1979 when Mrs. Irvine made her disclaimer. Under this regulation, Mrs. Irvine did not make her 1979 disclaimer “within a reasonable time after learning of the existence of the transfer.” See Jewett v. Commissioner, 455 U.S. 305, 318-319, 102 S.Ct. 1082, 1090-1091, 71 L.Ed.2d 170 (1982). Consequently, I find it surprising that the government has referred to the 1958 regulation in its briefs but has not expressly argued that this regulation does apply, that under it Mrs. Irvine must be “presumed to have accepted the property” prior to her 1979 disclaimer, and therefore that she should be considered the owner of that property interest and her disclaimer a taxable gift.2
My answer to this argument is a simple one — this prior version of the regulation does not apply in this case because it only applied to “property transferred from a decedent,” whereas the interest Mrs. Irvine disclaimed was created by an inter vivos trust. At first blush, that may seem like an overly-technical reading of the regulation. I submit it is not.
As Congress recognized when it adopted 1.R.C. § 2518 in 1976, two distinct federal tax issues arise from disclaimers. The first is the issue in this case: whether a disclaimer is a taxable event. The second issue concerns the effect a disclaimer will have on the original transfer of the disclaimed interest, for instance, when the disclaimer passes property to a beneficiary that qualifies for the estate tax charitable or marital deduction. See generally H.R.Rep. No. 1380, 94th Cong., 2d Sess. 67, reprinted in 1976 U.S.C.C.A.N. 3356, 3421. Because this second issue is likely to be more significant in the case of testamentary transfers than inter vivos transfers, I cannot assume that the Commissioner inadvertently limited the 1958 regulation to testamentary transfers. In other words, this is not a case where plain limiting language in the regulation should be ignored.
When the Commissioner adopted Treas. Reg. § 25.2511-l(c) in 1958, Congress had recently enacted I.R.C. §§ 2055 and 2056, which provided that the estate tax charitable and marital deductions would apply to property that passed from the decedent to an eligible beneficiary who received the property by reason of a disclaimer made before the date prescribed for the filing of the estate tax return. I.R.C. of 1954, Pub.L. No. 591, §§ 2055(a), 2056(d), 68A Stat. 390-91, 395 (1954). In an October 1, 1958, Memorandum to the Secretary of the Treasury discussing the new regulation,3 the Commissioner explained that the rule was intended to codify the adoption of state law in two testamentary cases, Brown v. Routzahn, 63 F.2d 914, 916 (6th Cir.), cert. denied, 290 U.S. 641, 54 S.Ct. 60, 78 L.Ed. 557 (1933), and Hardenbergh v. Commissioner, 198 F.2d 63, 66 (8th Cir.), cert. denied, 344 U.S. 836, 73 S.Ct. 45, 97 L.Ed. 650 (1952). The regulation also added the limitation that, to avoid the federal gift tax, the disclaimer must be made within a reasonable time, a concept already reflected in sections 2055 and 2056 of the 1954 Code.
There is further contemporaneous evidence that the Commissioner intentionally limited the 1958 regulation to the disclaimer of testamentary interests. In 1956, the American Law Institute published its Ten*998tative Draft No. 11 of a proposed Federal Income, Estate and Gift Tax Statute. Section X1007(h) of that proposal provided that an “irrevocable renunciation of an interest in property” is not a taxable gift if made “within a reasonable time after the person ... first bec[a]me aware of the existence of the interest.” That provision expressly applied to disclaimers of interests obtained “through an inter vivos gift,” as well as testamentary interests. Tentative Draft No. 11, § X1007(h)(2)(A)-(B) (A.L.I.1956). When § 25.2511-l(c) was initially proposed, it too applied broadly to any “renunciation of a vested property interest.” See 22 Fed. Reg. 53, 58 (Jan. 3, 1957). However, the final regulation applied only to a “refus[al] to accept ownership of property transferred from a decedent,” with the explanation that “the Gift Tax Regulations have been conformed to agree with the positions taken in the Estate Tax Regulations.” See the Commissioner’s Memorandum cited in note 3. Though this history is less than fully enlightening, it persuades me that the Commissioner intentionally limited the 1958 regulation to the disclaimer of testamentary interests.4
Limiting the 1958 regulation to its plain language is also consistent with interests of fairness and predictability in the tax laws. This regulation was inconsistent with prior judicial interpretation of the statutes. See Brown, 63 F.2d at 916-17 (leaving the question of the timeliness of the renunciation entirely to local law without imposing a “reasonable time” requirement); Comment to Tentative Draft No. 11 § X1007(h), at 33. While the Commissioner’s interpretation of the tax laws through regulations is entitled to substantial deference, we should not, many years after the fact, construe this regulation so as to extend it beyond its plain language in a manner that overrules otherwise governing case law upon which taxpayers have doubtless relied. Perhaps this is why the Commissioner has not directly relied upon the prior regulation on this appeal.
The Supreme Court “retroactively” applied the 1958 regulation to the 1972 disclaimer of interests created by a 1939 testamentary trust in Jewett, 455 U.S. at 316-18, 102 S.Ct. at 1089-91. However, the disclaimed interests in Jewett were plainly “property transferred from a decedent,” and thus the taxpayer had fair warning fourteen years before his disclaimers that the regulation might apply. Here, on the other hand, the regulation was inapplicable on its face to Mrs. Irvine’s contingent remainder interest in an inter vivos trust. With the regulation inapplicable, the federal tax effects of Mrs. Irvine’s 1979 disclaimer of that interest was governed by state law. Since the Commissioner concedes that her disclaimer was effective under Minnesota law, we must affirm.
. The pivotal issue in this case is whether Mrs. Irvine’s 1979 disclaimer was a taxable transfer. The 1917 transfer is relevant only because the current regulation makes it relevant. To illustrate this point by an obvious example, if my father gives property to my daughter tomorrow, whether that transfer is a taxable gift does not turn on whether he acquired the property by gift from his grandparents in 1917.
. As this court has recognized, the gift tax applies broadly to direct and indirect transfers of property interests including contingent remainders and other future interests. See Treas.Reg. §§ 25.251 l-l(f), 25.2512-5; O’Reilly v. Commissioner, 973 F.2d 1403, 1405 (8th Cir.1992).
. The Memorandum can be found at page 203-204 of the July 27, 1981 issue of Tax Notes.
. Although the A.L.I. proposal included disclaimers of inter vivos as well as testamentary interests, the Comment to Tentative Draft No. 11, § 1007(h), at 32-33, acknowledged:
Since an extension of the provision to inter vivos transfers raises greater possibilities of tax avoidance, however, it has been suggested that this section be limited to testamentary transfers. Such a limitation was rejected in section X1007(h) because it was felt that the equities in favor of relieving from the gift tax a person who renounces a testamentary transfer applied equally to the renouncer of an inter vivos gift.
Since Congress had only addressed the question of testamentary disclaimers in the 1954 Code, this may explain why the Commissioner decided to leave the issue of inter vivos disclaimers to Congress or the courts. Congress ultimately resolved the issue in § 2518, though only prospectively.