Section of Taxation Publications
  VOL. 57
NO. 2
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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.
A Second Chance? Evaluating an Inter Vivos Transfer After a Failed QTIP Election: Wells Fargo Bank New Mexico v. United States
Jonathan Beardsley


In Wells Fargo Bank New Mexico v. United States, the United States Court of Appeals for the Tenth Circuit held that, for federal tax purposes, the determination of whether or not a gift has been made is an issue of federal law. The transfer in question was of an irrevocable life interest from a decedent to the decedent’s husband. The District Court for the District of New Mexico had granted summary judgment to the decedent’s estate, finding that the estate owed no tax on the transfer because the transfer was incomplete under state law and therefore failed to qualify as a gift. Reversing, the Tenth Circuit looked to federal law and stated that the determination of when a gift has occurred is predicated on the transferor’s relinquishment of dominion and control of the interest. The court held that the decedent had indeed parted with dominion and control of the funds, so the transfer was a taxable event.

Part I of this Note discusses the statutory, factual, and procedural background of Wells Fargo that led to the Tenth Circuit’s decision. Part II considers the court’s opinion in light of the parties’ arguments. Part III explains that, based on the relevant statutory provisions, case law, and tax policy, the court’s decision was correct.


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


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