Section of Taxation Publications
  VOL. 53
NO. 4
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 Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.

Disclaimer of Intestate's Estate Under Arkansas Law Cannot Prevent Attachment of Federal Tax Lien: Drye v. United States

Claudia M. Osorio


In Drye v. United States, the Supreme Court affirmed the Eighth Circuit’s decision that a taxpayer’s right to disclaim an interest in an intestate’s estate under state law does not prevent the attachment of federal tax liens. The Court’s decision to grant certiorari stemmed from a split among the Second, Fifth, Eighth, and Ninth Circuits regarding the proper interpretation of section 6321 in cases where state law determines a taxpayer’s substantive right to property. Although the Court’s preference for the transfer theory over the acceptance-rejection theory of “right to property” was correct and resolved the circuit split, the Court’s decision failed to delineate the policy rationales which make the transfer theory of inherited property preferable.

Part I of this Note explains the applicable Code provisions and the facts of the case. Part II summarizes the lower courts’ and the Supreme Court’s decisions. Part III analyzes the Supreme Court’s reasoning and argues that, although the Court was correct in its holding, its opinion is incomplete because it fails to address certain policy issues.


Published by
Section of Taxation, American Bar Association
With the Assistance of
Georgetown University Law Center


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