Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor, Petitioner v. Commissioner of Internal Revenue, Respondent, 127 T.C. 139

OPINION Haines, Judge: Respondent issued a notice of deficiency to the Estate of Eleanor R. Gerson (the estate) determining a deficiency of $1,144,465 in Federal generation-skipping transfer (GST) tax. The sole issue before the Court concerns the validity of

section 26.2601-l(b)(l)(i), GST Tax Regs., which provides that the “grandfather” exception to the GST tax set forth in

section 1433(b)(2)(

A) of the Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, 100 Stat. 2085, 2731 (hereinafter TRA 1986

section 1433(b)(2)(A)), does not except from GST tax a transfer of property pursuant to the exercise, release, or lapse of a general power of appointment that is treated as a taxable transfer for purposes of Federal estate or gift tax. We hold the regulation is valid, and we sustain respondent’s determination that the disputed transfer is subject to GST tax. Background This case was submitted to the Court fully stipulated pursuant to Rule 122. The parties’ stipulation of facts, with attached exhibits, is incorporated herein by this reference. Eleanor R. Gerson (decedent) died testate on October 20, 2000.

At the time of her death, decedent was domiciled in Cleveland Heights, Ohio. Allan D. Kleinman was duly appointed executor of decedent’s estate by the Probate Court for Cuyahoga City, Ohio. At the time the petition was filed, Mr. Kleinman was a resident of Cuyahoga County, Ohio, and in his capacity as executor had a mailing address of 200 Public Square, Suite 2300, Cleveland, Ohio 44114. Decedent married Benjamin S. Gerson (Mr. Gerson) on November 6, 1938, and remained married to him until his death on July 22, 1973. Decedent and Mr. Gerson had four children and five grandchildren. On December 9, 1968, Mr.

Gerson, as grantor, executed a revocable trust agreement (the Benjamin Gerson Trust). On July 19, 1973, shortly before his death, Mr. Gerson amended the Benjamin Gerson Trust for the last time (the Third amendment). Upon Mr. Gerson’s death on July 22, 1973, the Benjamin Gerson Trust, as amended, became irrevocable.

Article ill, paragraph A of the Benjamin Gerson Trust, as amended, provided for the division of the trust corpus into three trusts. One of those trusts, Trust A, was a marital trust for the benefit of decedent.

Article III, paragraph B of the Benjamin Gerson Trust, as amended, provided for the distribution of the income and principal of Trust A. Specifically, paragraph B.3 of

article III provided: Upon the death of my said wife, the balance remaining in Trust A, including any income therein received by the Trustee from the time of the last income payment and the date of death of my said wife, shall be distributed by the Trustee to such person or persons, and in such share or shares, in trust or otherwise, as my said wife shall, by her Last Will and Testament, or Codicil thereto, appoint by specific reference thereto.

It is my intention that my said wife shall have an unlimited testamentary power of appointment in respect of the whole of Trust A, including the power to appoint the same in favor of her own estate. The parties agree that this provision of the Benjamin Gerson Trust, as amended, conferred upon decedent a general power of appointment, as that term is defined in

section 2041(b). The accounting records maintained by National City Bank as trustee of the Benjamin Gerson Trust reflect that no additions were made to the corpus of Trust A after September 25, 1985. On September 24, 1999, decedent executed her will and, as grantor, a revocable trust agreement (the Eleanor Gerson Trust). On September 13, 2000, shortly before her death, decedent amended and restated the Eleanor Gerson Trust. As of her death on October 20, 2000, decedent was survived by her four children and her five grandchildren.

Item I, paragraph C of decedent’s will provided: Under the terms of a certain Trust Agreement dated December 9, 1968, entered into between my spouse, BENJAMIN S. GERSON, AND NATIONAL CITY BANK, Trustee (as modified by my spouse’s Third amendment to said Trust Agreement, dated July 19, 1973), specifically at paragraph B.3 of

Article III thereof, I am granted a general power to appoint at the time of my death the property held in Trust A of my said spouse’s Trust Agreement. I hereby exercise said power of appointment and direct that all property subject thereto shall be allocated to NATIONAL CITY BANK, Trustee, or any successor thereto, under my said 1999 Amended and Restated Revocable Trust Agreement, to be administered pursuant to the terms of

ARTICLE III thereof (the Grandchildren’s Trust) for the benefit of my grandchildren and more remote descendants.

Article in of the Eleanor Gerson Trust established the Grandchildren’s Trust. Under the terms of the Grandchildren’s Trust, the corpus of the trust was divided into five equal shares for the benefit of each of her grandchildren. Two of decedent’s grandchildren received their shares outright. The shares allocated to the other three grandchildren were held in trust for their respective benefit, to be transferred outright to such grandchild upon the earlier of the grandchild’s reaching the age of 40 or the twenty-first anniversary of decedent’s death less 1 day.

Decedent’s estate filed a Form 706, United States Estate (and generation-skipping transfer) Tax Return, on July 20, 2001, along with a Form 8275-R, Regulation Disclosure Statement, indicating it was taking a position contrary to

section 26.2601-l(b)(l)(i), GST Tax Regs. The corpus of Trust A as of the date of decedent’s death is listed as Item 1 on

Schedule H of the estate’s return and is valued at $6,244,627.16. The estate’s return reported a gross estate in the amount of $22,054,002.79, and Federal estate tax in the amount of $7,168,531.02. As indicated, respondent issued a statutory notice of deficiency to decedent’s estate. A timely petition for redetermination was filed with the Court challenging respondent’s determination. Discussion The parties do not dispute that a transfer from decedent directly to her grandchildren, skipping over decedent’s children, normally would be subject to GST.

As discussed in detail below, the dispute in this case centers on the transitional relief provided by the “grandfather” exception to the GST tax set forth in TRA 1986

section 1433(b)(2)(A), and the validity of

section 26.2601 — l(b)(l)(i), GST Tax Regs. The regulation provides that a transfer of property pursuant to the exercise, release, or lapse of a general power of appointment that is treated as a taxable transfer under Federal estate and/or gift tax provisions, is not a “transfer under a trust” that is eligible for transitional relief from GST tax under TRA 1986

section 1433(b)(2)(A). To frame the issue properly, we briefly outline the GST tax provisions, review pertinent caselaw that preceded the promulgation of

section 26.2601 — l(fo)(l)(i), GST Tax Regs., examine the regulation and the circumstances surrounding its promulgation, and summarize the parties’ positions. I. The Generation-Skipping Transfer Tax The current version of the GST tax, set forth in sections 2601-2664, was enacted under TRA 1986, in which Congress substantively modified and retroactively repealed an earlier GST tax regime enacted in 1976. The GST tax generally is imposed on transfers, whether outright or in trust, to transferees who are at least two generations below the generation of the transferor. Secs. 2611, 2613(a).

The public policy underlying the GST tax is to bring uniformity and consistency to Federal transfer taxes (estate, gift, and generation-skipping) by imposing a transfer tax upon all transfers whether directly to an immediate succeeding generation or to generations further removed from the trans-feror. See Peterson Marital Trust v. Commissioner, 78 F.3d 795, 798 (2d Cir. 1996), affg. 102 T.C. 790 (1994); H. Rept. 99-426, at 824, 1986-3 C.B. (Vol. 2) 1, 824. A generation-skipping transfer is defined to include a taxable distribution, a taxable termination, and a direct skip. Sec. 2611(a).

A direct skip means a transfer, subject to Federal estate or gift tax, of an interest in property to a skip person. Sec. 2612(c)(1). A skip person means a natural person assigned to a generation which is two or more generations below the generation of the transferor, or a trust if all interests in such trust are held by skip persons. Secs. 2613(a)(1) and (2), 2651. In the case of a direct skip (other than a direct skip from a trust), liability for GST tax falls on the transferor. Sec. 2603(a)(3). The term “transferor” means the decedent in the case of any property subject to Federal estate tax. Sec. 2652(a)(1).

The flush language of

section 2652(a)(1) provides that “An individual shall be treated as transferring any property with respect to which such individual is the transferor.” As a general rule, if a decedent holds a general power of appointment over property at death, the value of such property is included in the decedent’s gross estate for Federal estate tax purposes under

section 2041. With exceptions not pertinent to our discussion, a general power of appointment means “a power which is exercisable in favor of the decedent, his estate, his creditors, or the creditors of his estate”. Sec. 2041(b)(1). GST tax generally applies to any generation-skipping transfer made after October 22, 1986. TRA 1986 sec. 1431(a). However, TRA 1986

section 1433(b)(2)(

A) provides special transitional rules or “grandfather” provisions excepting certain transfers from the reach of the GST tax. TRA 1986

section 1433(b)(2)(

A) provides: (

b) Special Rules.— # % ‡ ‡ ‡ Hí Hí

(2) Exceptions. — The amendments made by this subtitle shall not apply to— (

A) any generation-skipping transfer under a trust which was irrevocable on September 25, 1985, but only to the extent that such transfer is not made out of corpus added to the trust after September 25, 1985 (or out of income attributable to corpus so added), September 25, 1985, apparently was selected as the effective date for irrevocable trusts because the House Committee on Ways and Means held a markup session on these matters on September 26, 1985. See Staff of the Joint Comm, on Taxation, 99th Cong., Tax Reform Proposals in Connection with Committee on Ways and Means Markup (JCS-44-85) (Sept. 26, 1985). II. Caselaw Before

section 26.2601 — l(b)(l)(i), GST Tax Regs, (discussed below), was promulgated, this Court and others opined on the applicability of the transitional or effective date provisions of tra 1986

section 1433(b)(2)(A). A. Peterson Marital Trust v. Commissioner In Peterson Marital Trust v. Commissioner, 102 T.C. 790 (1994), affd. 78 F.3d 795 (2d Cir. 1996), we were asked to decide the validity of a regulation which provided that the lapse of a general power of appointment resulted in a “constructive” addition to the trust after the effective date of the GST tax. In that case, E. Norman Peterson died in 1974 and left a will providing for the creation of a marital trust under which his wife (Mrs.

Peterson) was entitled to receive all of the income and to withdraw one-half of the trust principal during her lifetime. Mrs. Peterson also was given a testamentary general power of appointment over the corpus of the marital trust. Under Mr. Peterson’s will, if Mrs. Peterson did not exercise her power of appointment, the trust principal would be set aside in equal shares for Mr. Peterson’s grandchildren. Mrs.

Peterson did not exercise her right to withdraw from the principal of the trust, and she did not exercise her general power of appointment over the trust corpus (except as to an amount necessary to pay estate tax attributable to the trust). As a result, at the time of Mrs. Peterson’s death, most of the trust property passed to Mr. Peterson’s grandchildren. The Commissioner determined the transfers to Mr. Peterson’s grandchildren were subject to GST tax.

The Peterson Marital Trust (the taxpayer) challenged the Commissioner’s determination and asserted the transfers qualified for transitional relief from GST under TRA 1986

section 1433(b)(2)(A). The taxpayer argued: “Because the Marital Trust was irrevocable on September 25, 1985 * * * the subsequent transfers from that trust upon Mrs. Peterson’s death are exempt from the GST tax.” Peterson Marital Trust v. Commissioner, 102 T.C. at 796. The Commissioner maintained the taxpayer was not eligible for transitional relief under TRA 1986

section 1433(b)(2)(

A) because the lapse of Mrs. Peterson’s general power of appointment resulted in a “constructive” addition of corpus to the trust after September 25, 1985, within the meaning of the statute. The Commissioner relied upon

section 26.2601-l(b)(l)(v)(A), Temporary GST Tax Regs., 53 Fed. Reg. 8445 (Mar. 15, 1988), amended by 53 Fed. Reg. 18839 (May 25, 1988). The taxpayer in turn asserted the temporary regulation was invalid on the ground it was contrary to the plain meaning of TRA 1986

section 1433(b)(2)(A). Upon review of the matter, we initially observed TRA 1986

section 1433(b)(2)(

A) did not define the term “added to the trust” and neither the provision nor its legislative history contained any specific guidance whether a lapse of a general power of appointment constituted a constructive addition to the corpus of a trust. Peterson Marital Trust v. Commissioner, 102 T.C. 798-799. Nevertheless, we gleaned from the effective date provisions a congressional intention to “grandfather” certain irrevocable trusts to protect the “reliance interests” of trust settlors who established trusts before the new GST tax; regime was introduced. Id. at 799. We elaborated on this point as follows: The effective date rules of TRA 1986

section 1433(b)(2)(

A) were apparently intended to “grandfather” trusts that were irrevocable prior to the date the House Ways and Means Committee began consideration of the bill containing the GST tax provisions. The most logical explanation for this grandfather clause is to protect the reliance interests of trust settlors who established irrevocable trusts prior to the legislative introduction of the GST tax regime eventually enacted by TRA 1986. See Tataranowicz v. Sullivan, 959 F.2d 268, 277 (D.C. Cir. 1992); Sercl v. United States, 684 F.2d 597, 599 (8th Cir. 1982).

As a corollary to its protection of reliance interests, the grandfather clause does not apply to transfers “made out of corpus added to the [grandfathered] trust after September 25, 1985”. TRA 1986 sec. 1433(b)(2)(A). Unlike a person who has irrevocably transferred money to a trust prior to the grandfathering date, a person who effects a transfer of corpus to a grandfathered trust after that date is aware of (or should be aware of) the effects of the GST tax.

Absent a restriction on post-grandfather-date transfers, an individual could utilize an existing grandfathered trust as a vehicle for passing additional amounts to skip persons free of GST tax, even though these additional amounts had not been irrevocably committed to such a transfer as of September 25, 1985. Such a result would be contrary to the reliance purpose underlying the grandfather clause. * * *

Section 26.2601-l(b)(l)(v)(A), Temporary GST Tax Regs., supra, is consistent with the reliance purpose underlying TRA 1986

section 1433(b)(2)(A), and is therefore valid. A person who holds a general power of appointment over trust property maintains control over the ultimate disposition of that property and is, in practical effect, in a position similar to the actual owner of the property. Estate of Kurz v. Commissioner, 101 T.C. 44, 50-51, 59-60 (1993), supplemented by T.C. Memo. 1994-221. This is the rationale underlying the inclusion of such property in the gross estate of the holder of the power for purposes of the Federal estate tax. Id. Mrs.

Peterson, as the holder of a testamentary general power of appointment, maintained effective control over the disposition of the property in the Marital Trust until her death in 1987. Had she chosen to do so, Mrs. Peterson could have exercised the general power of appointment to cause the trust property to be distributed to persons other than the Grandchildren’s Trusts, thereby avoiding a generation-skipping transfer.

Accordingly, as of the September 25, 1985, grandfather date, the corpus of the trust was not irrevocably required to be distributed to the Grandchildren’s Trusts. [Id. at 799-801 (emphasis added; fn. ref. omitted).] Consistent with the foregoing, we held the temporary regulation, which established that a lapse of a general power of appointment would result in a constructive addition to a trust, was a reasonable and valid

interpretation of TRA 1986

section 1433(b)(2)(A), and the transfers to Mr. Peterson’s grandchildren were subject to GST tax. The taxpayer appealed this Court’s decision to the Court of Appeals for the Second Circuit. In affirming our decision, the Court of Appeals emphasized that TRA

section 1433(b)(2)(

A) must be interpreted in proper context. Peterson Marital Trust v. Commissioner, 78 F.3d at 796, 799. The Court of Appeals observed the exercise, release, or lapse of a general power of appointment is viewed as “essentially identical to outright ownership” of the underlying property by the power holder for purposes of Federal estate and gift taxes. Id. at 799-800. Applying this “ownership” principle consistently in the context of the GST tax, the Court of Appeals held that a transfer of property as the result of the lapse of a general power of appointment should be treated as if the power holder received property and then added it to the trust within the meaning of TRA 1986

section 1433(b)(2)(A). Holding that the constructive addition principle embodied in

section 26.2601-l(b)(l)(v)(A), Temporary GST Tax Regs., supra, was a reasonable construction of the statute, the Court of Appeals rejected the taxpayer’s argument the word “added” in TRA 1986

section 1433(b)(2)(

A) should be interpreted according to its ordinary, literal meaning (thus requiring an actual increase in the size of the trust as opposed to a constructive addition to the trust). Peterson Marital Trust v. Commissioner, 78 F.3d at 800. The Court of Appeals also rejected the taxpayer’s argument the regulation in question was invalid because it did not comport with the purpose of the effective date provisions. The taxpayer argued Mrs. Peterson allowed her power of appointment to lapse in an innocent effort to honor her husband’s wishes and no elaborate legal maneuvers were employed in carrying out the transfers.

The Court of Appeals responded as follows: The [effective date] rule was not enacted to allow taxpayers who, in good faith and without intent to evade taxes, seek to continue benefitting from a tax advantage that Congress has eliminated. It was designed, instead, to protect those taxpayers who, on the basis of pre-existing rules, made arrangements from which they could not reasonably escape and which, in retrospect had become singularly undesirable. By giving Mrs. Peterson a general power of appointment over the trust, Mr.

Peterson created an arrangement which was desirable under then-existing tax laws and which could be reworked completely should the laws change, as they in fact did. There is no reason to “grandfather” such a mutable arrangement, and Congress has given no indication that it wished to do so. ifc jj: íH ‡ Mr. Peterson did not tie himself or his heirs up at all. He gave Mrs. Peterson a power over the trust that was great enough to undo any harm that stemmed from reliance on the absence of a GST at the time the trust was created.

It is this fact that, in the end, not only gives additional support to the view that the Treasury Regulation on constructive additions is a reasonable one, but also negates all of the taxpayer’s arguments that on “policy grounds” the exemption should apply in this case. B. Simpson v. United States In Simpson v. United States, 183 F.3d 812 (8th Cir. 1999), revg. and remanding 17 F. Supp. 2d 972 (W.D.

Mo. 1998), the Court of Appeals for the Eighth Circuit addressed a factual scenario nearly identical to the instant case and held a transfer to grandchildren pursuant to the exercise of a general power of appointment was eligible for transitional relief from GST tax under TRA 1986

section 1433(b)(2)(A). The facts in Simpson are as follows. Mr. Simpson died in 1966 and left a will creating a testamentary trust primarily for the benefit of his wife, Mrs. Bryan. The trust gave Mrs. Bryan a general power of appointment by will. Mrs. Bryan died in 1993 and left a will in which she exercised her power of appointment in favor of her grandchildren. The Commissioner determined the transfer to the grandchildren was subject to GST tax, and the District Court granted the Commissioner’s motion for

summary judgment, holding TRA 1986

section 1433(b)(2)(

A) did not apply to relieve the taxpayer of liability. On appeal, the Court of Appeals for the Eighth Circuit reversed, holding the transfer to the grandchildren constituted a “transfer under a trust which was irrevocable on September 25, 1985” within the plain meaning of the language of TRA 1986

section 1433(b)(2)(A). The Court of Appeals stated: Trust A, having been created by Mr. Simpson’s will in 1966, was of course irrevocable on September 25, 1985. Was the transfer made by Mrs. Simpson a transfer “under” this trust? We do not see how an affirmative answer can be avoided. The power of appointment that made the transfer possible was created by the trust. Language has to mean something, and the argument that this particular transfer was not “under” trust A is simply untenable. [Simpson v. United States, supra at 814-815.] In so holding, the Court of Appeals rejected the Commissioner’s argument that the relevant action for purposes of TRA 1986

section 1433(b)(2)(

A) was Mrs. Bryan’s exercise of her power of appointment (after October 22, 1986). In particular, the Court of Appeals concluded the relevant action under the express language of TRA 1986

section 1433(b)(2)(

A) was whether the trust became irrevocable on or before September 25, 1985. The Court of Appeals reasoned as follows: The point is that when the trust was created and became irrevocable Mrs. Bryan was given the authority, under the law as it then existed, to exercise her general power of appointment in favor of anyone at all, and to do so without subjecting the transfer to a GST tax, such a tax then being far in the future. This is the sort of reliance that the effective-date provision protects. [Simpson v.

United States, supra at 814-815.] As a final matter, the Court of Appeals rejected the Commissioner’s reliance on Peterson Marital Trust, distinguishing that case on the grounds (1) it concerned the lapse of a power of appointment (as opposed to the exercise of a power of appointment), and (2) the Commissioner had relied upon a temporary Treasury regulation in Peterson Marital Trust, whereas there was no regulation applicable to the transfer in dispute in the Simpson case. Simpson v. United States, 183 F.3d at 815-816. C. Bachler v. United States In Bachler v.

United States, 281 F.3d 1078 (9th Cir. 2002), revg. and remanding 126 F. Supp. 2d 1279 (N.D. Cal. 2000), another case presenting a scenario nearly identical to the instant case, the Court of Appeals for the Ninth Circuit followed the holding of the Eighth Circuit in Simpson and held the disputed transfer to the Bachler grandchildren was eligible for relief from the GST tax under TRA 1986

section 1433(b)(2)(A). The disputed transfer in Bachler occurred in 1997, and, therefore, the Court of Appeals declined to address the validity of

section 26.2601-l(b)(l)(i), GST Tax Regs, (discussed below), which was not in effect until a later date. III.

Section 26.2601-l(b)(l)(i), GST Tax Regs. We now turn to the regulation at issue in this case — a regulation that was amended in response to the Eighth Circuit’s decision in the Simpson case.

Section 26.2601-l(b)(l)(i), GST Tax Regs., originally was promulgated in 1995 and closely tracked the language of TRA. 1986

section 1433(b)(2)(A). The regulation stated in pertinent part: (

b) Exceptions.- —

(1) Irrevocable trusts. — (

i) In general. The provisions of

chapter 13 do not apply to any generation-skipping transfer under a trust (as defined in

section 2652(b)) that was irrevocable on September 25, 1985. The rule of the preceding sentence does not apply to a pro rata portion of any generation-skipping transfer under an irrevocable trust if additions are made to the trust after September 25, 1985. * * * [T.D. 8644, 1996-1 C.B. 200, 207.] In November 1999, several months after the Eighth Circuit issued Simpson, the Secretary proposed to amend

section 26.2601-l(b)(l)(i), GST Tax Regs. See 64 Fed. Reg. 62997 (Nov. 18, 1999). The Treasury Department’s notice of proposed rulemaking included a discussion and comparison of Peterson Marital Trust and Simpson, and articulated the view that (1) there was no substantive difference in the cases, and

(2) Simpson was wrongly decided. See id. at 62999. The proposed amendment was adopted and promulgated in final form on December 20, 2000. See T.D. 8912, 2001-1 C.B.

Section 26.2601 — l(b)(l)(i), GST Tax Regs., now states in pertinent part: (

b) Exceptions. —

(1) Irrevocable trusts. — (

i) In general. The provisions of

chapter 13 do not apply to any generation-skipping transfer under a trust (as defined in

section 2652(b)) that was irrevocable on September 25, 1985. * * * Further, the rule in the first sentence of this paragraph (b)(l)(

i) does not apply to a transfer of property pursuant to the exercise, release, or lapse of a general power of appointment that is treated as a taxable transfer under

chapter 11 or

chapter 12. The transfer is made by the person holding the power at the time the exercise, release, or lapse of the power becomes effective, and is not considered a transfer under a trust that was irrevocable on September 25, 1985. * * * In sum,

section 26.2601-l(b)(l)(i), GST Tax Regs., recites the general transitional rule set forth in TRA 1986

section 1433(b)(2)(

A) and excepts from the rule a transfer of property pursuant to the exercise, release, or lapse of a general power of appointment if that transfer is treated as a taxable transfer by the power holder for purposes of Federal estate or gift taxes.

Section 26.2601-l(c), GST Tax Regs., provides that the amended portion of the regulation is applicable on and after November 18, 1999. IV. The Parties’ Positions Petitioner relies on the Eighth and Ninth Circuit cases, Simpson and Bachler, for the proposition that the plain and unambiguous language of TRA 1986

section 1433(b)(2)(

A) excepts the transfer in dispute from GST tax, inasmuch as decedent’s exercise of her general power of appointment under the Benjamin Gerson Trust in favor of her grandchildren constituted a “generation-skipping transfer under a trust that was irrevocable on September 25, 1985”. Petitioner maintains

section 26.2601 — l(b)(l)(i), GST Tax Regs., is an invalid attempt by the Secretary to “re-write the statute and to override the judicial construction of the statute’s plain language”. As petitioner sees it, TRA 1986

section 1433(b)(2)(

A) was intended to protect the reliance interest of a grantor of a trust that was irrevocable on September 25, 1985 — that is, Congress intended such grantors could be assured any transfer from an irrevocable trust would not be subjected to GST tax. Respondent maintains

section 26.2601 — l(b)(l)(i), GST Tax Regs., is a reasonable and valid

interpretation of TRA 1986

section 1433(b)(2)(A). Respondent avers TRA 1986

section 1433(b)(2)(

A) is silent regarding the proper treatment of transfers from irrevocable trusts pursuant to the exercise of a general power of appointment, and

section 26.2601-l(b)(l)(i), GST Tax Regs., reasonably fills the statutory gap. Relying on the Second Circuit opinion in Peterson Marital Trust for the general proposition the transitional relief provided in

section 1433(b)(2) was intended to protect taxpayers who “relying on pre-existing rules, made arrangements from which they could not reasonably escape”, respondent asserts

section 26.2601-l(b)(l)(i), GST Tax Regs., is a reasonable

interpretation of TRA 1986

section 1433(b)(2)(A). In respondent’s view, the regulation correctly focuses on whether a generation-skipping transfer was mandated under a trust that was irrevocable on September 25, 1985, not (as petitioner contends) on whether the trust was irrevocable on September 25, 1985. Respondent reasons that, because the disputed generation-skipping transfers in this case were not required or mandated under the trust, but were made at decedent’s election and pursuant to the exercise of a general power of appointment under which decedent was deemed to be the owner of the property for purposes of the Federal estate tax, the transfers are not eligible for exemption from the GST tax under TRA 1986

section 1433(b)(2)(A). V. Analysis This case presents a question of first impression concerning the validity of

section 26.2601 — l(b)(l)(i), GST Tax Regs. We evaluate the validity of the regulation against the plain language of TRA 1986

section 1433(b)(2)(A), its origin, and its purpose. Our analysis is informed in part by caselaw interpreting the statute. This case is appealable to the Court of Appeals for the Sixth Circuit, which to our knowledge has not had occasion to address TRA 1986

section 1433(b)(2)(

A) or regulations related thereto. We note at the outset that the Secretary promulgated

section 26.2601 — l(b)(l)(i), GST Tax Regs., after the Commissioner received an adverse decision from the Eighth Circuit in Simpson. In Natl. Cable & Telecomm. Association v. Brand X Internet Servs., 545 U.S. 967,_, 125 S.

Ct. 2688, 2700 (2005), the Supreme Court stated: A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. * * * As previously discussed, the Eighth Circuit based its holding in Simpson on the plain meaning of the phrase “transfer under a trust” contained in tra 1986

section 1433(b)(2)(A), whereas this Court and the Second Circuit in Peterson Marital Trust held that the same statute must be read in proper context. Where, as here, the Secretary was confronted with what we consider conflicting judicial constructions of TRA 1986

section 1433(b)(2)(A), we do not believe the Supreme Court’s statement in Natl. Cable & Telecomm. Association curtailed the Secretary’s discretion to promulgate the regulation in dispute or mandates a holding in this case that Simpson trumps the regulation in dispute.

Section 26.2601 — l(b)(l)(i), GST Tax Regs., is a Federal interpretative tax regulation promulgated under the general authority vested in the Secretary by

section 7805(a). Although entitled to considerable weight, interpretative tax regulations are accorded less deference than legislative regulations issued under a specific grant of authority. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-844 (1984); United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982). When this Court reviews an interpretative tax regulation, we generally apply the analysis set forth by the Supreme Court in Natl. Muffler Dealers Association v. United States, 440 U.S. 472 (1979). Under Natl.

Muffler Dealers Association, an interpretative regulation is valid if it implements a congressional mandate in a reasonable manner. Id. at 476-477; see United States v. Vogel Fertilizer Co., supra at 24 (quoting United States v. Correll, 389 U.S. 299, 307 (1967)). In Natl. Muffler Dealers Association v. United States, supra at 477, the Supreme Court stated: In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose.

A regulation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent. If the regulation dates from a later period, the manner in which it evolved merits inquiry. Other relevant considerations are the length of time the regulation has been in effect, the reliance placed on it, the consistency of the Commissioner’s

interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute. * * * In Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra, the Supreme Court enunciated the following two-part analysis applicable to judicial review of an agency’s construction of a statute: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra at 842-843; fn. refs, and citations omitted.] In the case before us, we conclude it is unnecessary to attempt to discern any substantive difference between Natl. Muffler Dealers Association and Chevron U.S.A., Inc. because we conclude the result here would be the same under either standard. See Swallows Holding, Ltd. v. Commissioner, 126 T.C. 96, 131 (2006). In evaluating the validity of

section 26.2601 — l(b)(l)(i), GST Tax Regs., we first consider whether Congress has directly spoken to the precise question at issue. Inasmuch as TRA 1986

section 1433(b)(2)(

A) does not define the phrase “transfer under a trust”, we do not believe that Congress has directly spoken to the precise question at issue here; i.e., the proper treatment under the GST tax effective-date provisions of transfers effected pursuant to the exercise, release, or lapse of a general power of appointment. As previously discussed, the Eighth and Ninth Circuits in Simpson and Bachler, respectively, have held the plain language of TRA 1986

section 1433(b)(2)(

A) excepts from GST tax a generation-skipping transfer effected pursuant to the exercise of a general power of appointment under a trust that was irrevocable on September 25, 1985. We respectfully disagree with the holdings in these two cases. Instead, we adhere to the view, articulated by the Second Circuit in Peterson Marital Trust, that the words of TRA 1986

section 1433(b)(2)(A) “can only be given meaning in a particular context”. Peterson Marital Trust v. Commissioner, 78 F.3d at 799. Consistent with Natl. Muffler Dealers Association and Chevron U.S.A., Inc., we do not evaluate the validity of

section 26.2601 — l(b)(l)(i), GST Tax Regs., by examining the plain language of TRA 1986

section 1433(b)(2)(

A) in a vacuum — we also are obliged to consider the origin and purpose of the statute. Our review of the legislative history of TRA 1986 as it pertains to the question presented reveals two matters that warrant discussion. First, as we comprehend statements by the Committee on Ways and Means (the Committee) in H. Rept. 99-426, supra at 820, 1986-3 C.B. (Vol. 2) at 820, describing then-present law, under the heading “Overview”, the Committee understood the GST tax was imposed on a transfer from a trust which specifically provided for distributions to a generation at least two generations removed from the grantor.

This viewpoint is reiterated in H.

Rept. 99-426, supra at 821, 1986-3 C.B. (Vol. 2) at 821, under the heading “Generation assignment”, which states in pertinent part: “A generation-skipping trust is a trust having two or more generations of ‘beneficiaries’ who belong to generations which are ‘younger’ than the generation of the grantor of the trust.” Significantly, nothing in the committee reports suggests that, when Congress referred to “transfers under a trust”, it ever contemplated or considered a volitional generation-skipping transfer arising from the exercise of a general power of appointment as opposed to a specific transfer by the settlor to identified persons.

Second, in H. Rept. 99-426, supra at 824, 1986-3 C.B. (Vol. 2) at 824, the Committee stated, under the heading “Reasons for Change”: The committee believes, as it stated when the generation-skipping transfer tax originally was enacted in 1976, that the purpose of the three transfer taxes (gift, estate, and generation-skipping) is not only to raise revenue, but also to do so in a manner that has as nearly as possible a uniform effect.

This policy is best served when transfer tax consequences do not vary widely depending on whether property is transferred outright to immediately succeeding generations or is transferred in ways that skip generations. * * * The bill accomplishes the committee’s goal of simplified administration while ensuring that transfers having a similar substantial effect will be subject to tax in a similar manner. [Emphasis added.] To paraphrase, the Committee expressed its intention that

(1) Federal transfer taxes generally should be applied as uniformly as possible, and (2) generation-skipping transfers having a similar substantial effect should be taxed in a similar manner. In Peterson Marital Trust v. Commissioner, 98 F.3d at 800, the Second Circuit concluded the regulation in dispute therein was a reasonable

interpretation of TRA 1986

section 1433(b)(2)(

A) because the regulation ensured that general powers of appointment would be treated consistently; i.e., treated as outright ownership of the property for purposes of all Federal transfer taxes, which harmonized with the origin and purpose of the statute.

Section 26.2601 — l(b)(l)(i), GST Tax Regs., harmonizes with the origin and purpose of TRA 1986

section 1433(b)(2)(

A) and achieves the consistency and uniformity Congress sought. By excluding transfers arising from the exercise of a general power of appointment from the transitional relief provided in TRA 1986

section 1433(b)(2)(

A) for “transfers under a trust”, the regulation ensures that general powers of appointment are uniformly treated as the equivalent of outright ownership by the power holder. In other words, the regulation is consistent with the general proposition under the GST tax regime that a decedent who dies holding a general power of appointment over property is treated as the “transferor” of that property for purposes of GST tax. Secs. 2603(a)(3), 2652(a)(1); 5 Bittker & Lokken, Federal Taxation of Income, Estates & Gifts, par. 133.2.2, at 133-6 to 133-7 (2d ed. 1993).

The regulation also promotes uniformity by ensuring that generation-skipping transfers arising from the lapse of a power of appointment on the one hand, and generation-skipping transfers arising from the exercise of a power of appointment on the other, are taxed in a similar manner. We also must not lose sight of the particular purpose of the statute. As the Second Circuit discussed in Peterson Marital Trust v. Commissioner, 78 F.3d at 801-802 n.6, the transitional rules set forth in tra

section 1433(b)(2) are so-called grandfather provisions designed to protect taxpayers who, on the basis of preexisting rules, made estate-planning arrangements from which they could not reasonably escape and which would otherwise generate GST tax liability. The generation-skipping transfers in the present case are not transfers the transitional rules were intended to protect. Mr. Gerson did not structure his irrevocable trust in a manner that tied the hands of his heirs, nor was decedent required to make the disputed generation-skipping transfers. To the contrary, Mr.

Gerson gave the decedent the flexibility to transfer trust property to anyone of her choosing. Decedent, who was aware or should have been aware of the regulation in dispute, nevertheless exercised her general power of appointment to effect a generation-skipping transfer. Considering all the factors discussed above, we hold

section 26.2601 — l(b)(l)(i), GST Tax Regs., is a reasonable and valid

interpretation of the plain language of TRA 1986

section 1433(b)(2)(A). The regulation harmonizes with the plain language of the statute, its origin, and its purpose. Natl. Muffler Dealers Association v. United States, 440 U.S. at 477. Accordingly, we sustain respondent’s determination that decedent’s transfer to her grandchildren was subject to GST tax. To reflect the foregoing, Decision will be entered for respondent. Reviewed by the Court. Cohen, Swift, Halpern, Thornton, Goeke, and Kroupa, JJ., agree with this majority opinion. Chiechi, J., concurs in result only. Foley, J., did not participate in the consideration of this opinion. Unless otherwise indicated,

section references are to sections of the Internal Revenue Code, as amended, and Rule references are to the Tax Court Rules of Practice and Procedure. The first generation-skipping transfer tax was enacted as part of the Tax Reform Act of 1976, Pub. L. 94-455, sec. 2006, 90 Stat. 1879-1890. It follows that a decedent who dies holding a general power of appointment over property is treated as the transferor of that property for purposes of GST tax. See 5 Bittker & Lokken, Federal Taxation of Income, Estates & Gifts, par. 133.2.2, at 133-6 to 133-7 (2d ed. 1993).

Sec. 26.2601-l(b)(l)(v)(A), Temporary GST Tax Regs., 53 Fed. Reg. 8445 (Mar. 15, 1988), provided in pertinent part: where any portion of a trust remains in the trust after the release, exercise, or lapse of a power of appointment over that portion of the trust, * * * the value of the entire portion of the trust subject to the power that was released, exercised, or lapsed will be treated as an addition to the trust. This understanding of the purpose behind the effective date rule is underscored by the other provisions of the rule.

First, the rule provided that the GST would not apply to transfers made by wills that had been executed before the date of enactment of the GST (October 22, 1986) if the decedent died before January 1, 1987. Pub. L. 99-514, § 1433(b)(2)(B). This exception ensured that an individual who did not have a reasonable time between the enactment of the law and his death to alter his will would not be penalized by the new provision.

Second, the effective date rule allowed an exception for any individual who was “under a mental disability to change the disposition of his property and did not regain his competence to dispose of such property before the date of his death.” Pub. L. 99-514, § 1433(b)(2)(C). [Id. at 801-802; emphasis added.] We note that decedent last amended and restated the Eleanor Gerson Trust on Sept. 13, 2000, some 10 months after the Secretary first proposed to amend the regulation in dispute. In connection with this point, petitioner contends TRA. 1986 sec. 1433(b)(2)(

A) was carefully drafted to except from the GST tax any transfer under a trust that was irrevocable on Sept. 25, 1985, with one narrow exclusion for transfers made out of corpus added to the trust after Sept. 25, 1985. Cf. Greenpeace, Inc. v. Waste Techs. Indus., 9 F.3d 1174, 1179-1181 (6th Cir. 1993). In Simpson v. United States, 183 F.3d 812, 815-816 (8th Cir. 1999), the Court of Appeals for the Eighth Circuit distinguished Peterson Marital Trust v.

Commissioner, 78 F.3d 795 (2d Cir. 1996), affg. 102 T.C. 790 (1994), in part because the latter case concerned a lapse of a power of appointment, which was treated as resulting in a constructive addition to the trust. Considering that the holder of general power of appointment is treated as having the same outright “ownership” interest for purposes of Federal transfer taxes, see secs. 2041 (estate tax), 2514(b) (gift tax), we fail to see any meaningful difference for present purposes whether in the end there is a lapse, exercise, or release of the power.

See Harrington et al., Generation Skipping Transfer Tax, par. 7.03[5][b][i] (2d ed. 2001) (questioning the Eighth Circuit’s attempt at distinguishing Peterson Marital Trust).