Taxation of Estates and Gifts
Immaterial Table
| Condition | Immaterial under Section 2036 | Immaterial under Section 2038 |
|---|---|---|
| Joint Power, i.e., act of D and another person is necessary to exercise the power | ✔ 26 CFR § 20.2036-1(b)(3) text(i) | ✔ 26 CFR § 20.2038-1(a) |
| Capacity, i.e., D holds power as a fiduciary, like a trustee | ✔ 26 CFR § 20.2036-1(b)(3) text(ii) | ✔ 26 CFR § 20.2038-1(a) |
| Contingency beyond D’s control is condition precedent to D’s having the power | ✔ 26 CFR § 20.2036-1(b)(3) text(iii) | ❌ 26 CFR § 20.2038-1(b) |
| Contingency within D’s control is condition precedent to D’s having the power | ✔ Implied from 26 CFR § 20.2036-1(b)(3) text(iii) | ✔ Implied from 26 CFR § 20.2038-1(b) |
| Power relates only to time and manner of enjoyment, e.g. income and remainder beneficiary is the same person | ❌ Implied from 26 CFR § 20.2036-1(b)(3) text(iii) | ✔ |