The opinion
SIMPSON, J., dissenting: For the reasons set forth in my opinion in Estate of Davis v. Commissioner, 86 T.C. 1156 , filed on the same date as this opinion, I must also dissent in this case.
Sterrett, Goffe, Chabot, Parker, and Cohen, JJ., agree with this dissent. WHITAKER, J., dissenting: In this case a majority of this Court has invalidated section 20.2032A-8(a)(2) of respondent’s Estate Tax Regulations so as to permit special use valuation to be elected where decedent’s will empowers grandchildren to pass the property to unqualified heirs. In Estate of Davis v. Commissioner, 86 T.C. 1156 (1986) an analogous situation, we also invalidated this same section of the Estate Tax Regulations, but the facts were materially different. There we concluded that “the possiblity that the nonqualified class of contingent beneficiaries would succeed to the property is exceedingly remote. Where there is an obvious and continuing effort by a testator to comply with the requirements of section 2032A,” it is appropriate to permit the special use valuation election to be made. The decedent in Davis restricted ownership of the property to his lineal descendants, one class of qualified heirs, as long as that line existed. There was a high degree of probability that the title to the farm would, in fact, vest in a lineal descendant. Here, by contrast, decedent permitted his grandchildren through exercise of special powers of appointment to divert the property to nonqualified heirs. This decedent did not make an “obvious and continuing effort” to comply with the section 2032A requirements. The fact that the family farm is likely to remain in the hands of qualified heirs for longer than the recapture period is simply irrelevant. Respondent’s regulation as applied to a power of appointment is a reasonable interpretation of the statute and certainly not “plainly inconsistent.” It should not be invalidated under the facts of this case. See Bingler v. Johnson, 394 U.S. 741 (1969).
SHIELDS, J., agrees with this dissent.