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MILLER v. UNITED STATES

No. 16739.

387 F.2d 866 (1968)

Horace S. MILLER, Jr. and Isabel M. Campbell, Co-Executors of the Estate of Isabella Steel Miller, Deceased, v. UNITED STATES of America, Appellant.

United States Court of Appeals Third Circuit.

Decided January 2, 1968.

Attorney(s) appearing for the Case

Jonathan S. Cohen, Dept. of Justice, Tax Division, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Attys., Dept. of Justice, Gustave Diamond, U. S. Atty., W. Wendell Stanton, Asst. U. S. Atty., Washington, D. C., on the brief), for appellant.

Joseph B. Mitinger, Mitinger & Mitinger, Greensburg, Pa., for appellees.

Before HASTIE, FREEDMAN and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge:

This case presents the recurring problem of the taxability as part of a decedent's estate of a power of appointment over trust corpus which the decedent possessed but did not exercise. Here, as in other such cases, the legal question is mixed with the apparent injustice of the imposition of an estate tax on a power which was never exercised and which would clearly have been exempt from tax as a limited power...

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