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Estate of Vissering v. Commissioner

United States Court of Appeals for the Tenth Circuit
990 F.2d 578 (1993)


Norman H. Vissering was the life income beneficiary and co-trustee of a trust created by his mother. Upon Vissering’s death, the trust assets were to be distributed to, or for the benefit of, Vissering’s two children. Under the terms of the trust, Vissering had the power as a co-trustee to pay to himself as beneficiary “whatever amount or amounts of the principal of this Trust as may, in the discretion of the Trustees, be required for the continued comfort, support, maintenance, or education of said beneficiary.” Vissering retained these powers as trustee until death. After his death, the Internal Revenue Service (IRS) sought to include the assets of the trust in his taxable estate. The IRS claimed that his powers as co-trustee constituted a general power of appointment over the trust assets as defined under I.R.C. § 2041. Relying on language of the trust that the Tax Court interpreted as permitting Vissering to distribute principal to himself for his “comfort,” the Tax Court held that this constituted a power of appointment that was not subject to an ascertainable standard enforceable by a court. Vissering’s estate appealed the Tax Court’s decision to the United States Court of Appeals for the Tenth Circuit.

Rule of Law


Holding and Reasoning (Logan, C.J.)

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