                  T.C. Memo. 2007-371



                UNITED STATES TAX COURT



            ESTATE OF KWANG LEE, DECEASED,
      ANTHONY J. FRESE, EXECUTOR, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 14511-06.              Filed December 20, 2007.



     D died 46 days after his wife, W. D’s estate
claimed a marital deduction for property that was
transferred to W as if W had survived D. W’s will
states that D is deemed to have predeceased W for
purposes of W’s will if D dies within 6 months after
W’s death. Although not stated specifically in D’s
will, D’s intention for purposes of D’s will was that W
also be deemed to have survived D if D died within 6
months after W’s death.
     Held: D’s testamentary intent that D be deemed to
have predeceased W will not be recognized as qualifying
the estate for the marital deduction for Federal estate
tax purposes because sec. 2056, I.R.C., requires that a
spouse actually survive his or her spouse in order to
be a “surviving spouse”.
                                 -2-

     Barbara L. de Mare, for petitioner.

     Lisa M. Rodriguez, for respondent.



                         MEMORANDUM OPINION


     LARO, Judge:   Anthony J. Frese (Frese), acting in his

capacity as executor of the Estate of Kwang Lee and with a

mailing address in Hackensack, New Jersey, petitioned the Court

to redetermine respondent’s determination of a Federal estate tax

deficiency of $1,020,129, a section 6662(a) accuracy-related

penalty of $204,026, and a section 6651(a)(1) addition to tax of

$255,032 for untimely filing.1   Currently, this case is before

the Court on respondent’s motion for partial summary judgment

under Rule 121.   Respondent argues that he properly disallowed a

marital deduction claimed by the Estate of Kwang Lee (decedent’s

estate) because Kwang Lee (decedent) was not survived by his

wife, Kyong Lee (Ms. Lee).   Petitioner argues that decedent’s

estate may benefit from the marital deduction because Ms. Lee

survived decedent by operation of decedent’s and Ms. Lee’s

respective wills.   We decide whether the estate qualifies for the

marital deduction under section 2056.   We hold it does not.




     1
      Rule references are to the Tax Court Rules of Practice and
Procedure. Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code (Code).
                                 -3-

                             Background

     Ms. Lee died testate on August 15, 2001, leaving a Last Will

and Testament dated June 21, 2001 (Ms. Lee’s will).      Ms. Lee’s

will was admitted to probate on September 14, 2001, on which day

letters testamentary were issued to decedent.

     Decedent died testate on September 30, 2001, also leaving a

Last Will and Testament dated June 21, 2001.      Decedent’s will was

admitted to probate, and letters testamentary were issued to

Frese as successor executor.   After decedent’s death, Frese was

appointed successor executor of Ms. Lee’s estate pursuant to Ms.

Lee’s will.   The wills of decedent and Ms. Lee were drafted by

petitioner’s counsel, Barbara L. de Mare (Ms. de Mare).

     When the estate planning was performed, decedent and Ms. Lee

suffered from a serious and ultimately fatal disease.      Decedent

and Ms. Lee had three children in their twenties and wished to

establish trusts for those children.      Decedent had been a

corporate executive and, because of the nature of his work

benefits, most of the assets of decedent and Ms. Lee were held in

decedent’s name.    The joint assets and the assets titled in Ms.

Lee’s name alone constituted only a minimal portion of the

combined estates.

     Through their wills, a major objective of decedent and Ms.

Lee was to obtain the maximum tax benefits for their respective

estates.   To fulfill this goal, Ms. de Mare drafted the wills
                                  -4-

with the following survivorship provisions.     Article 9 of Ms.

Lee’s will states:   "Ninth:    For purposes of this Will, any

person who shall die within six (6) months after my death shall

be deemed to have predeceased me”.      Conversely, decedent’s will

states:

     NINTH: A. For purposes of this Will, any person,
     other than my wife, who shall die within six (6)
     months after my death shall be deemed to have
     predeceased me.

     B. In the event that my wife shall die at the same
     time as I, or under circumstances such as to render it
     difficult or impossible to determine who died first, my
     wife shall be deemed to have survived me.

Decedent and Ms. Lee intended that Ms. Lee be deemed to have

survived decedent if decedent died within 6 months after the

death of Ms. Lee.

     The estates of decedent and Ms. Lee were administered as

though decedent had predeceased Ms. Lee.     The estate tax returns

were filed as if decedent died first, and a credit shelter trust

was established in decedent’s name with the residuary thereof

transferred to Ms. Lee as if she were still alive.     Decedent’s

estate’s tax return claimed the marital deduction as to the

residuary purportedly transferred to Ms. Lee.

                               Discussion

A.   Summary Judgment

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.      Fla. Peach Corp. v.
                                -5-

Commissioner, 90 T.C. 678, 681 (1988).   Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994).   The moving party bears the burden of proving

that there is no genuine issue of material fact, and factual

inferences are drawn in a manner most favorable to the party

opposing summary judgment.   Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).   Petitioner has raised no genuine issue as to any

material fact.   Accordingly, we conclude that this case is ripe

for partial summary judgment.

B.   Marital Deduction

     Deductions are strictly a matter of legislative grace, and

petitioner must show that the claimed deduction is allowed by the

Code.   INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).

Petitioner argues that decedent intended that Ms. Lee be deemed

to have survived him were he to die within 6 months after her.

Petitioner argues that this intent establishes the ordering of
                                 -6-

decedent’s and Ms. Lee’s deaths for estate and related tax

purposes.    To this end, petitioner relies on section 2056(b)(3):

          (3) Interest of spouse conditional on survival
     for limited period.--For purposes of this subsection,
     an interest passing to the surviving spouse shall not
     be considered as an interest which will terminate or
     fail on the death of such spouse if--

                 (A) such death will cause a termination
            or failure of such interest only if it occurs
            within a period not exceeding 6 months after
            the decedent's death, or only if it occurs as
            a result of a common disaster resulting in
            the death of the decedent and the surviving
            spouse, or only if it occurs in the case of
            either such event; and

                 (B) such termination or failure does not
            in fact occur.

Petitioner argues that section 2056(b)(3) permits the actual

order of the death of spouses to be altered for estate and

related tax purposes as long as the deaths are still within

6 months of each other.

     Respondent argues that the marital deduction requires an

actual surviving spouse.    Because Ms. Lee died 46 days before

decedent, respondent argues, decedent had no surviving spouse and

decedent’s estate is not entitled to benefit from the marital

deduction.    Respondent argues that the wills of decedent and Ms.

Lee cannot operate to change the order of their deaths.

Respondent further argues that the term “survivor” is undefined

in the Code and therefore must be given its normal and customary
                                 -7-

meaning.   Respondent states that the plain meaning of “survivor”

is one who outlives another.

     We begin our analysis with the applicable statute.     Section

2056(a) provides for a marital deduction from the value of a

decedent’s gross estate:

     SEC. 2056.   BEQUESTS, ETC., TO SURVIVING SPOUSE.

          (a) Allowance of Marital Deduction. * * * the
     value of the taxable estate shall * * * be determined
     by deducting from the value of the gross estate an
     amount equal to the value of any interest in property
     which passes or has passed from the decedent to his
     surviving spouse, but only to the extent that such
     interest is included in determining the value of the
     gross estate.

This provision permits a deduction from the value of a decedent’s

gross estate of an amount equal to the value of property

interests that pass from a decedent to his or her surviving

spouse.    By its terms, section 2056 predicates the marital

deduction on the presence of a “surviving spouse”.     See also sec.

20.2056(a)-1(a), Estate Tax Regs.

     We find petitioner’s reliance on section 2056(b)(3) to be

misplaced.    Petitioner argues that section 2056(b)(3) permits a

change in the order of the deaths of a husband and wife if they

die within 6 months of each other.     We disagree.   We do not read

section 2056(b)(3) to permit any modification to the timing of

the actual deaths of a husband and wife.     Instead, we read

section 2056(b)(3) to permit a marital deduction even if the

passing of an interest to a surviving spouse is conditioned upon
                                -8-

the spouse’s surviving the decedent by a period not exceeding

6 months, provided the spouse in fact survives the requisite

6 months, and thus the condition is satisfied.    See Estate of

Mackie v. Commissioner, 64 T.C. 308, 312 (1975), affd. 545 F.2d

883 (4th Cir. 1976); Estate of Shepherd v. Commissioner, T.C.

Memo. 1989-610.

     As to the term “surviving spouse”, we construe that term in

accordance with its ordinary meaning.    See United States v. Am.

Trucking Associations, Inc., 310 U.S. 534, 543-544 (1940);

Venture Funding, Ltd. v. Commissioner, 110 T.C. 236, 241-242

(1998), affd. without published opinion 198 F.3d 248 (6th Cir.

1999).   The ordinary meaning of the word “survivor” is one who

survives another; i.e., one who outlives another.   Building on

this definition, the term “surviving spouse” requires that a

spouse actually survive his or her spouse; i.e., the later-dying

spouse must actually outlive his or her spouse.   Because Ms. Lee

did not actually survive decedent, i.e., Ms. Lee predeceased

decedent, we conclude that Ms. Lee is not a surviving spouse

within the meaning of section 2056(a).   While decedent may have

intended that Ms. Lee, even though dead, be deemed to have

survived him, the operation of a will or wills cannot alter the

order of the actual deaths of decedent and Ms. Lee.   Cf. sec.

20.2056(c)-2(e), Tax Regs. (a presumption, whether supplied by

local law, the decedent's will, or otherwise, may operate to
                                -9-

determine the order of the deaths of spouses if the actual order

of their deaths cannot be determined).

     An appropriate order will be issued granting respondent’s

motion for partial summary judgment.    We have considered all

arguments by petitioner for a holding contrary to that which we

reach herein.   To the extent not discussed, we conclude that

those arguments are irrelevant or without merit.


                                           An appropriate order will

                                      be issued.
