dissenting.
I do not find this case as easy or as clear on behalf of the Government as a reading of the Court’s opinion would lead one to believe. While the issue could be described as somewhat close, I conclude that the petitioners have much the better of the argument, and I would reverse the judgment of the Court of Appeals.
I
Margaret Weyerhaeuser Jewett, grandmother of petitioner George F. Jewett, Jr:, died testate on January 14, 1939. At her death she was a resident of Massachusetts. She left a will which was duly admitted to probate in that Commonwealth.
By her will the decedent created a trust for the benefit of her husband, James R. Jewett, during his lifetime, and thereafter for the benefit of her son, George F. Jewett, and his wife, Mary, for their respective lives. On the death of the survivor of the three life beneficiaries, the trust estate is to be distributed to the then living children of George F. Jew-ett and to the then living issue of any deceased child of George F. Jewett, in equal shares by right of representation.
*320Petitioner George F. Jewett, Jr., was born April 10, 1927; he thus was not yet 12 years old when his grandmother died. The testatrix’ husband, James, and her son, George, died prior to 1972. Mary is still living; she was born March 7, 1901.
On August 30, 1972, petitioner1 executed an instrument disclaiming and renouncing the major portion of any right to receive any remainder of the trust estate upon the death of his mother. On December 14 of that year, petitioner executed a second instrument disclaiming and renouncing the remaining portion of any such right. It is undisputed that these 1972 disclaimers were valid, timely, and effective under the applicable Massachusetts law.
Petitioner George F. Jewett, Jr., and his wife, petitioner Lucille M. Jewett, filed federal gift tax returns for the calendar quarters ended September 30 and December 31,1972, respectively. Those returns notified respondent Commissioner of the disclaimers but did not acknowledge them as taxable transfers for federal gift tax purposes.2
On audit, the Commissioner determined that the disclaimers were not “made within a reasonable time after knowledge of the existence of the transfer,” within the meaning of Treas. Reg. §25.2511-l(c), 26 CFR § 25.2511-1(c) (1981), and thus were transfers subject to federal gift tax under §§ 2501(a)(1) and 2511(a) of the Internal Revenue Code of 1954, as amended, 26 U. S. C. §§ 2501(a)(1) and 2511(a). Deficiencies of approximately $750,000 were determined.
Petitioners sought redetermination of the deficiencies in the United States Tax Court. That court, in a reviewed decision, ruled in favor of the Commissioner. 70 T. C. 430 (1978). In so doing, the court followed its earlier ruling in *321Keinath v. Commissioner, 58 T. C. 352 (1972), an unre-viewed decision that had been reversed, 480 F. 2d 57 (1973), by a unanimous panel of the United States Court of Appeals for the Eighth Circuit five years before. In the present case, a panel of the Ninth Circuit, by a divided vote, affirmed the Tax Court. 638 F. 2d 93 (1980). Because of the conflict, so created, between judgments of two Courts of Appeals, the case is here.
II
As the Court observes, ante, at 311, the language of the Regulation provides support for the petitioners as well as for the Commissioner. The Court also acknowledges that the Regulation has language that “implies that the relevant ‘transfer’ had not yet occurred when petitioner renounced his interest in the trust.” Ibid. The Court, however, opts for the Commissioner’s opposing interpretation. I am persuaded otherwise.
To be sure, certain factors lend colorable support to the Commissioner’s position: (a) Although petitioner was not yet 12 years old when the testatrix died, he attained the age of 21 in 1948, 24 years before he executed the disclaimers in 1972. (b) Sections 2501(a)(1) and 2511(a) of the Code are broad and sweeping and were intended to reach every “transfer of property by gift,” whether in trust or otherwise, and whether direct or indirect, (c) And to accept petitioners’ position could mean, as a practical matter, that one who is a beneficiary of a trust, such as this testatrix created, may stand aside for a long period before disclaiming and thus, in a sense, may make that disclaimer a part of his own estate planning when actual possessory enjoyment of the property is nearer at hand and its desirability or a need for it is better evaluated than many years before.
The other side of the controversy, however, is not without substantial support. The federal gift tax does not deal with abstractions. It is concerned with “the transfer of property by gift.” 26 U. S. C. § 2501(a)(1). With the development of *322testamentary trusts — or, for that matter, of inter vivos trusts — legally recognized “interests” of various kinds, pos-sessory and anticipatory, can be created by the trustor. The beneficiary of a contingent remainder or, as the Court seems to suggest here, ante, at 308, n. 5, of “a vested remainder subject to divestiture,” however, may never realize anything by way of actual enjoyment of income or corpus. The contingencies upon which enjoyment depends may never ripen. In particular, the contingent beneficiary may die while the life beneficiary still lives.
These possibilities, accompanied by the monetary impact of gift and death taxes led courts and legislative bodies to recognize or develop common-law disclaimer and to enact preventive statutory provisions. Indeed, the Commissioner here, in the Regulation at issue, § 25.2511 — 1(c), recognizes a right to refuse, free of gift tax, acceptance of “ownership of property transferred from a decedent,” provided.that the right to refuse is effective under local law and the refusal is “made within a reasonable time after knowledge of the existence of the transfer.” It is accepted that the disclaimers in the present case were effective under Massachusetts law. I search the statute in vain, however, for any statutory mention of, or provision for, the reasonable-time requirement. One might say, therefore, that the Commissioner in his wisdom acted as a matter of grace to relieve, upon the conditions specified, what could be difficult and potentially unfair and financially disastrous tax situations.
Be that as it may, I regard any “transfer” here, not as one from George F. Jewett, Jr. (the necessary predicate of the Commissioner’s determination), but as a transfer from the testatrix. She is the one from whom the largess flows. Petitioner, of course, was in the line of designated beneficiaries, but he stepped from that line through the acts of disclaimer, and the transfer will pass him by.
There are other practical considerations that have appeal for me:
*3231. Accepting the Commissioner’s Regulation and its “reasonable time” requirement, it seems to me that that time is to be measured, not from the death of the testatrix in 1939, but from the death of the preceding life beneficiary. That life beneficiary, petitioner’s mother, is still alive. Petitioner has realized no benefit from the trust and never will have any benefit if he predeceases his mother. It is the contingency event that is important and makes sense in the consideration of any disclaimer.
2. A disclaimer is fundamentally different from a voluntary transfer of property. A disclaimer is a refusal to accept property ab initio. Bel v. United States, 452 F. 2d 683, 693 (CA5 1971), cert. denied, 406 U. S. 919 (1972); see Black’s Law Dictionary 417 (5th ed. 1979). The law of disclaimer is founded on the basic property-law concepts thát a transfer is not complete until its acceptance by the recipient, and that no person can be forced to accept property against his will. A transferor chooses the recipients of the transferred property; a disclaimant makes no such selection, for that selection has been made by the trustor. Petitioner’s disclaimers merely renounced any future right to receive corpus of the trust; they did not direct or even purport to direct the future distribution of that corpus.
3. Until the Ninth Circuit, by its divided vote, decided the present case, the only Court of Appeals authority on the issue was Keinath v. Commissioner, supra. For reasons best known to 'him, the Commissioner did not seek certiorari in that case and the decision stood unmolested by any opposing appellate court authority for over seven years. Indeed, it was expressly reaffirmed by the Eighth Circuit sitting en banc in Cottrell v. Commissioner, 628 F. 2d 1127 (1980), a case decided just a few weeks before the Ninth Circuit decision.3 In the interim, a substantial period as the tax law *324goes, taxpayers and their advisers have properly assumed that a disclaimer, valid under state law, was valid for federal tax purposes as well if it were timely made. Judge Harris, dissenting below, observed that “it is particularly important in matters of taxation that established precedent be followed.” 638 F. 2d, at 96. He went on to say that if the case were one of first impression, he “might well join with the majority” but “[njumerous tax practitioners have undoubtedly relied on this [the Keinath] opinion in advising as to the tax consequences of such acts as are involved in the instant case, and justifiably so.” Ibid. I agree that stability in tax law is desirable. Except for the Tax Court, the pronounced law appeared to have achieved a level of stability after Keinath.
4. The Eighth Circuit’s analysis of the legal issue, it seems to me, is sound. In Keinath the court stressed that the remainder beneficiary “at no time accepted any income or principal from the trust,” 480 F. 2d, at 59, and that within eight weeks of the death of the testator’s widow-life beneficiary, the remainderman executed his disclaimer. It was established that the disclaimer was valid and timely under applicable state law and that as a result thereof the trust estate passed to the disclaimant’s children. The court noted that “reasonable time,” as that term is used in the Regulation, is not defined either in the Code or the Regulation. The basic common-law requirements that the disclaimer must be made within a reasonable time and that it be effective under local law “are but a codification of common law principles applicable to the doctrine of disclaimers.” Id., at 61. A central *325factor is the interpretation of the word “transfer” in the Regulation. The remainderman “had really nothing to accept or renounce by way of beneficial ownership or control of the property until he succeeded in outliving the life beneficiary.” Id., at 64. The court then held that, under the prevailing common law, the holder of a vested remainder interest subjected to divestiture has a reasonable time within which to disclaim after the death of the life beneficiary. Ibid. It distinguished Fuller v. Commissioner, 37 T. C. 147 (1961), upon which the Tax Court had relied, and did so on the factual grounds mentioned below.
In Cottrell, the Eighth Circuit, sitting en banc, adhered to its Keinath analysis. It felt the case was “indistinguishable in any material respect from Keinath.” 628 F. 2d, at 1128. It was undisputed that the disclaimer in question was valid under state law, that it was unequivocal, and that the taxpayer accepted no property before she disclaimed. As in Keinath, if the “reasonable time” period began with the death of the testator, the disclaimer was untimely, but if the critical event was the death of the life beneficiary, the disclaimer “was unquestionably timely, having been executed 16 days, and filed two months, thereafter.” 628 F. 2d, at 1129. There is nothing unfair or improper in allowing the remainderman to wait until the life beneficiary’s death and then decide whether to accept the bequest.
What the Eighth Circuit said by way of analysis, and held, in Keinath and Cottrell, when applied to the facts before us, is persuasive and should control here. The Ninth Circuit majority, without any particular analysis, merely disagreed with the Keinath and Cottrell reasoning and held, in a conclusory statement, that the “‘transfer’ as used in the regulation means the transfer to the disclaimant of the property interest disclaimed by him,” and that the transfer in question took place in 1939 when Mrs. Jewett died and petitioner received a contingent remainder from her estate. 638 F. 2d, at 96.
*3265. The Court notes, ante, at 316, that by the Tax Reform Act of 1976, Pub. L. 94-455, § 2009(b)(1), 26 U. S. C. §2518, Congress now has imposed a uniform tax treatment of disclaimers, independent of state law. Section 2518, as so added to the Code, however, was specifically made prospective only, that is, it was made applicable only to transfers creating an interest after 1976. Pub. L. 94-455, § 2009(e)(2), 90 Stat. 1896. It thus has no application to the present case.
The Court declares, ante, at 317: “Congress expressed no opinion on the proper interpretation of the Regulation at issue in this case,” but merely established an unambiguous rule for the future. That conclusion is not at all clear to me. Congress was aware of the Keinath decision. See H. R. Rep. No. 94-1380, p. 66, and n. 4 (1976). The House Committee on Ways and Means observed:
“The amendments apply with respect to transfers creating an interest in the person disclaiming made after December 31, 1976. In the case of transfers made before January 1, 1977, the rules relating to transfers under present law, including the period within which a disclaimer must be made, are to continue to apply to disclaimers made after December 31, 1976.” Id., at 67-68.
For me, this is an acknowledgment that the Keinath ruling represented what the law was prior to 1977, and what it still is for trust instruments effective before that calendar year. I cannot join the Court’s flat statement that “Congress expressed no opinion” on the existing law.
6. To be sure, the Tax Court has persisted in its contrary rulings. Those rulings, I feel, rest on an insecure base. The original case, from which all the other Tax Court decisions have flowed, was Fuller v. Commissioner, 37 T. C. 147 (1961), a reviewed case. In Fuller, the life beneficiary of five-eighths of the income of her husband’s testamentary trust received that income for many years before she renounced a portion of her five-eighths share. Thus, she real*327ized actual enjoyment for a long period before she disclaimed. This, for me, is a vital fact that distinguishes the case from Keinath, Cottrell, and Jewett, where each disclaimant enjoyed no benefit whatsoever. Mrs. Fuller had accepted her gift before renouncing it.
The next Tax Court ease was Keinath v. Commissioner, 58 T. C. 352 (1972). The judge who decided Keinath relied on Fuller as controlling precedent. He acknowledged Mrs. Fuller’s receipt of income from the trust “for over 25 years,” conceded that the Fuller facts “are admittedly different,” but nevertheless ruled that “this distinction is immaterial.” 58 T. C., at 358. He did not read Fuller “as resting upon Mrs. Fuller’s acceptance of income from the trust but upon her acceptance of her interest in the trust.” 58 T. C., at 358.
The next pertinent Tax Court decision was that in the present case.4 70 T. C. 430 (1978). There the court, in a reviewed decision, referred to, and relied upon, its own decision in Keinath which had been reversed by the Eighth Circuit. “We think that our decision in Keinath was correct and that it controls the decision in this case.” 70 T. C., at 435.
The last Tax Court cases are Estate of Halbach v. Commissioner, 71 T. C. 141 (1978), and Cottrell v. Commissioner, 72 T. C. 489 (1979). The former was a federal estate tax case centering on 26 U. S. C. §2035 (disclaimer within three years of death). The latter, concerning a sister of the Halbach decedent, related to federal gift tax. Neither was a reviewed decision. The judge in Cottrell, recognizing that that case was appealable only to the Eighth Circuit, avoided the Court of Appeals decision in Keinath by distinguishing it on grounds later found unacceptable by the Eighth Circuit majority when the Tax Court decision was reversed.
*328Such is the saga of the issue in the United States Tax Court. The cases build on one another, but the origin and base is Fuller. That original case, in my view, is clearly distinguishable on its facts and thus, indeed, is “a frail reed on which to lean.”
7. The Court’s and the Commissioner’s position also seems to me to embrace a distinct element of unfairness. The Commissioner stresses repeatedly the number of years that elapsed between the death of the testatrix and the execution of the disclaimers. This same element has been stressed in others of these cases. But to require the disclaimer long before the interest could ripen into enjoyment means that the decision must be made at a time when the disclaimant does not know what he is disclaiming or whether he ever would receive and enjoy any interest. This concern is compatible with the wording of the applicable Regulation which speaks of “knowledge of the existence of the transfer.” The Eighth Circuit recognized this element of unfairness in Cottrell. 628 F. 2d, at 1131.
For all these reasons, I would reverse the judgment of the Court of Appeals. I therefore respectfully dissent.
For convenience, any reference made herein to “petitioner” in the singular, refers to George F. Jewett, Jr., alone.
Petitioners, as they were entitled to do under § 2513 of the Internal Revenue Code of 1954,26 U. S. C. § 2513, elected to treat any gift made by either as made equally by both.
In Cottrell, three judges dissented because they felt that, in contrast with the factual situation in Keinath, the Cottrell taxpayer had “extensive” and “ultimate” control through a general testamentary power of appoint*324ment. They would modify the Keinath approach “where the remainder-man essentially controls the events which would cause divestiture of the interest.” They agreed, however, with the “general rule as applied to the facts of Keinath,” where an interest is “less than an indefeasibly vested remainder.” 628 F. 2d, at 1132-1133.
It is of interest to note that the court in Cottrell observed: “The Commissioner has not asked us to overrule Keinath, and we are not inclined to do so on our own motion.” Id., at 1131.
See, however, Estate of Rolin v. Commissioner, 68 T. C. 919, 927 (1977), aff'd, 588 F. 2d 368 (CA2 1978).