                          T.C. Memo. 2002-82



                      UNITED STATES TAX COURT



ESTATE OF EARL C. KOESTER, DECEASED, CAROL C. FORTNEY AND ROGER
      D. FORTNEY, PERSONAL REPRESENTATIVES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 530-00.                  Filed March 28, 2002.



     Roger D. Fortney, for petitioner.

     George W. Bezold, for respondent.


             MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:   Respondent determined a $45,241 deficiency

in estate tax for Earl C. Koester’s estate (the estate).    After

a timely petition was filed, respondent conceded the $45,241

estate tax deficiency.    Following this concession, the estate

argues that the $109,270 estate tax liability it originally

reported on its estate tax return was incorrect.    The estate,
                                - 2 -

contending that decedent was deprived of equal protection, argues

that it should have no estate tax liability.1      The issue

remaining for our consideration is whether imposition of the

estate tax liability is a deprivation of equal protection under

the law in violation of the United States Constitution.        Under

the circumstances of this case, we are unable to hold that there

was a deprivation of equal protection.

                          FINDINGS OF FACT2

     Earl and Mildred Koester, who at all pertinent times were

married, owned farmland in Waseca County, Minnesota.      Mr. Koester

did not attend school beyond the eighth grade.      Mrs. Koester

completed high school.    When the Koesters drafted their wills,

they did so with advice from an attorney.

     Mrs. Koester died August 11, 1988.       The total value of her

estate was $201,101.93.    Her estate included real estate

interests in the Koester homestead and an undivided one-half

interest in a 120-acre parcel of land.    With the exception of

certain cash bequests to her grandchildren, Mrs. Koester, in her

will, bequeathed her property to Mr. Koester.      As her estate did




     1
       The estate also claimed that the Koesters’ lack of
advanced education resulted in their inability to hire a
competent attorney to devise their wills.
     2
      Some facts have been stipulated pursuant to Rule 91 and are
herein incorporated by reference.
                                - 3 -

not exceed $600,000 and no tax was due, her estate did not file a

Federal estate tax return.

     Mr. Koester died December 2, 1996.    More than 80 percent of

his estate consisted of real estate.     The only property that had

been jointly owned by the Koesters was a homestead and a 120-acre

parcel of land.   The remainder of the realty had been solely

owned by Mr. Koester.   Mr. Koester’s estate reported a gross

estate of $1,001,999 and an estate tax liability of $109,270.

                               OPINION

     The estate points out that a married couple may split their

accumulated wealth and legally avoid estate tax on combined

assets up to $1,200,000.3    The estate argues that the Koesters

could have devised their wills accordingly and obviated any

estate tax burden; however, their lack of advanced education left

them unaware of the intricacies of these estate tax provisions.

In light of this, the estate contends that the complexity of the

Code provisions deprives the less-well educated citizens of their

right to equal protection under the law.

     We find the estate’s argument is misguided.    The Koesters

were free to will their property in accord with their wishes.

They hired an attorney to provide legal assistance in their

choices of disposing of their estate.    On the record before us,



     3
       This amount is for the estates of decedents who died
before 1998.
                                 - 4 -

we cannot determine whether the Koesters were aware of the

provisions that the estate contends would have obviated the

incidence of estate tax.   We are limited to considering the tax

ramifications based on the facts at hand, not what may have

otherwise occurred.   Commissioner v. Natl. Alfalfa Dehydrating &

Milling Co., 417 U.S. 134, 148-49 (1974); Estate of La Sala v.

Commissioner, 71 T.C. 752, 764 (1979).

     We hold that the $109,270 reported estate tax liability did

not result in a violation of decedent’s constitutional rights.

     To reflect the foregoing,


                                         A decision reflecting

                                 no deficiency or overpayment

                                 in estate tax will be entered.
