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FINLEY v. UNITED STATES

No. 78-1066.

612 F.2d 166 (1980)

John F. FINLEY, Executor of the Estate of Mildred B. Whitlock, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

February 20, 1980.

Attorney(s) appearing for the Case

M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Act. Chief, App. Section, Richard Farber, James A. Riedy, Attys., Tax Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellant.

George H. DeCarion, South Miami, Fla., for plaintiff-appellee.

Before MORGAN, REAVLEY and HATCHETT, Circuit Judges.

REAVLEY, Circuit Judge:

This appeal arises from a refund suit in which the district court determined that the value of a trust, over which taxpayer's decedent held a general testamentary power of appointment, could not be included under I.R.C. § 2041(a), (b)(1) in decedent's taxable estate since she had been mentally incompetent and therefore legally incapable of exercising that power throughout her possession of it. We decide, however, that under I.R.C. §...

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