which an election has been made. Estate of Spencer v. Commissioner, 43 F.3d at 231; Estate of Robertson v. Commissioner, 15 F.3d at 783; Estate of Clayton v. Commissioner, 976 F.2d at 1499.

The opinions of the Courts of Appeals, however, diverge in one respect. The Court of Appeals for the Fifth Circuit held that the effect of the QTIP election is retroactive to the instant of the decedent's death. Estate of Clayton v. Commissioner, 976 F.2d at 1495, 1500. The Court of Appeals for the Sixth Circuit rejected what it characterized as the legal fiction of retroactivity created by the Fifth Circuit. Estate of Spencer v. Commissioner, 43 F.3d at 234. Instead, the Sixth Circuit held that the date for determining whether property qualifies for the QTIP election is the date the QTIP election is made. Id. at 232. In holding that the relevant date for the determination is the date the QTIP election is made, the Sixth Circuit rejected the Commissioner's argument that Jackson v. United States, 376 U.S. 503 (1964), requires a contrary holding. The Sixth Circuit stated:

Jackson is readily distinguishable from this case and not in point. In Jackson, after her husband's death, a widow received a court-ordered temporary allowance for her support and maintenance payable from his estate. The Supreme Court held that because the widow's allowance arose from a right under state law which had not vested in her as of her husband's date of death, it could not be included as part of the marital deduction because it did not meet the definition of any counter-exception to the rule that terminable interests are to be included in the taxable estate. Jackson at 507, 84 S.Ct. at 871-72. In the instant case, the decedent used an estate planning device unknown when Jackson was decided-the QTIP counterexception to the terminable interest rule. Because the Jackson court ruled on the proper determination date for an interest which is not an exception to the terminal interest rule, and not subject to a later election, we do not think it is dispositive of this issue. [Estate of Spencer v. Commissioner, 43 F.3d at 231.]

Petitioner argues that, because at the time of his death decedent was a resident of the State of Arkansas, the Eighth Circuit would have venue for an appeal of the instant case (absent stipulation to the contrary). Accordingly, petitioner contends that, pursuant to Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), the Eighth Circuit's decision in Estate of Robertson v. Commissioner, supra, is controlling and that we should therefore hold for petitioner. Respondent argues that, because at the time of fil

ing the petition in the instant case the individual coexecutor of decedent's estate was a resident of the State of Wisconsin and the corporate coexecutor had its principal place of business in that State, venue for an appeal of the instant case would lie to the Court of Appeals for the Seventh Circuit, which has not addressed the QTIP issue presented in the instant case, and, consequently, that the Tax Court is not bound under the Golsen rule.

The Golsen rule requires a conflict between this Court and the court having venue over an appeal of the case sub judice. Because we decide in the instant case to accede to the decisions of the Courts of Appeals that have reversed our decisions on the issue before us, no such conflict exists, and therefore it is unnecessary to address the parties' arguments concerning the proper venue for an appeal of the instant

case.

We also find it unnecessary, at this point, to winnow out the differences in our analyses in our prior cases and those of the Courts of Appeals that have reversed us. Finally, we see no reason in the instant case to adopt either the rationale of the Fifth and Eighth Circuits, on the one hand, or of the Sixth Circuit, on the other, as in either case the result is the same: the marital deduction is allowed. Suffice it to say that, in light of the reversals of this Court's decisions by three different circuits, we now decide that we will accede to the result in those appellate decisions and will no longer disallow the marital deduction for interests that are contingent upon the executor's election under section 2056(b)(7)(B)(v), where the election is actually made under facts similar to those in the instant case. Accordingly, we hold that the marital trust property in the instant case qualifies as QTIP under section 2056(b)(7).

One caveat to our holding is in order. Section 20.2056(b)— 7(d)(3), Estate Tax Regs.,5 provides that the marital deduction is not available under the circumstances of the instant case. Because the regulation is effective for estates of

5 Sec. 20.2056(b)-7(d)(3), Estate Tax Regs., provides as follows:

(3) Contingent income interests. An income interest granted for a term of years, or a life estate subject to termination upon the occurrence of a specified event (e.g., remarriage), is not a qualifying income interest for life. In addition, an income interest (or life estate) that is contingent upon the executor's election under section 2056(b)(7)(B)(v) is not a qualifying income interest for life, regardless of whether the election is actually made.

decedents dying after March 1, 1994 (see sec. 20.2056(b)-10, Estate Tax Regs.), it is not applicable to the instant case. Consequently, we leave for another day the issue of the validity of that regulation. Obviously, if the regulation were held to be valid, there might be a different result for estates of decedents dying after March 1, 1994.

To reflect the foregoing,

Reviewed by the Court.

An appropriate order will be issued.

HAMBLEN, SWIFT, JACOBS, WRIGHT, RUWE, COLVIN, LARO, FOLEY, and VASQUEZ, JJ., agree with this majority opinion.

CHABOT, J., concurring in the result: I do not agree with the majority's determination to overrule this Court's opinions in Estate of Robertson v. Commissioner, 98 T.C. 678 (1992), revd. 15 F.3d 779 (8th Cir. 1994); Estate of Clayton v. Commissioner, 97 T.C. 327 (1991), revd. 976 F.2d 1486 (5th Cir. 1992); and Estate of Spencer v. Commissioner, T.C. Memo. 1992-579, revd. 43 F.3d 226 (6th Cir. 1995). See generally Part I (QTIP Issue) of Judge Parker's dissent, and Judge Halpern's dissent.

However, for the reasons set forth in Judge Gerber's concurrence, I would hold that venue for an appeal would be in the Court of Appeals for the Eighth Circuit. Under the Golsen rule, we would be bound to follow the interpretation of that Court of Appeals. See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971). Because the Golsen rule leads to the same result that the majority reach in the instant case, I concur in the result.

SWIFT, J., 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

1 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.

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