Request for Guidance on Granting First Spouse to Die a General Power of Appointment over the Surviving Spouse's Property - Resources | The American College of Trust and Estate Counsel

Request for Guidance on Granting First Spouse to Die a General Power of Appointment over the Surviving Spouse's Property.

An Adobe PDF version of this document is available here.

Daniel H. Markstein, III
Maynard, Cooper Gale, P.C.
1901 6th Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, Alabama 35203-2602
Direct Dial: (205) 254-1043
E-mail: dmarkstein@maynardcooper.com

August 10, 2007

Via email michael.desmond@do.treas.gov; donald.l.korb@irscounsel.treas.gov

Mr. Michael J. Desmond, Tax Legislative Counsel
Department of the Treasury
1500 Pennsylvania Ave., N.W.
Room 3040
Washington, DC 20220

Mr. Donald L. Korb, Chief Counsel and Assistant General Counsel
Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224-0002

Re: Request for Guidance on Granting First Spouse to Die a General Power of Appointment over the Surviving Spouse's Property

Dear Mr. Desmond and Mr. Korb:

I am writing to you on behalf of the American College of Trust and Estate Counsel ("ACTEC") to ask that you add to the Business Plan the matter discussed in the enclosed letter dated July 23, 2004 from ACTEC's then President, Robert J. Rosepink, to Mr. George Masnik. The letter concerns the transfer tax consequences of granting the first spouse to die a general power of appointment over the surviving spouse's property.

Although the Internal Revenue Service has continued to issue taxpayer-favorable private letter rulings on this subject since the enclosed letter was sent, IRC§ 6110 (k)(3)provides that a taxpayer may not rely on a private ruling issued to another taxpayer. As the estate tax credit increases, this issue becomes even more important. Unless the strategy described in the enclosed letter is effective, many married couples will be unable to allocate their assets to make sure that the spouse who dies first will have sufficient assets to benefit from his or her available estate tax credit.

Representatives of ACTEC would be pleased to meet with you and/or your representatives to discuss why we think that this matter should be given a high priority. ACTEC also will be pleased to offer any technical assistance that you may find useful in carrying out this project.

Respectfully submitted,

Daniel H. Markstein, III
President

Encl.
cc: George Masnik (george.l.masnik@irscounsel.treas.gov)
      Catherine Hughes (catherine.hughes@do.treas.gov)
      Susan Brown (susan.brown@do.treas.gov)
      William P. O'Shea (william.p.oshea@irscounsel.treas.gov)
      Ellen K. Harrison, Esq.