The petitioner first argued that Joan and Warren Caswell's deed of their interests in the Rockville Centre residence was a disclaimer. Relying on Estate of John P. Hoelzel, 28 T.C. 384">28 T.C. 384 (1957), it contended that a disclaimer need not be in any particular form but can be implied from the facts and circumstances of each case, and therefore, since Joan and Warren Caswell, by the execution of the deed, relinquished their interest in the residence and never exercised any other control over it, the deed was an effective disclaimer. The petitioner's1974 U.S. Tax Ct. LEXIS 125">*134 argument assumed that a disclaimer, qualifying under section 2056(d) (2), need not conform to the applicable State law procedures for renouncing interests in an intestate's estate. The respondent contested the petitioner's assumption and argued that, in fact, the deed did not qualify as a renunciation under New York law. Consequently, the preliminary question to be decided is whether "disclaimer," as used in section 2056(d)(2), refers to the State law procedure for renouncing interests in intestate estates.

The legislative history of section 2056(d)(2) indicates that a qualifying disclaimer must satisfy the conditions of applicable State law. The disclaimer "must be a valid refusal under State law." S. Rept. No. 1599, 89th Cong., 2d Sess., p. 5 (1966). In a footnote, the Senate report further explained its position by stating that it "is not material for this purpose whether a particular State law uses the term 'disclaimer' or uses another term describing the same legal effect." S. Rept. No. 1599, supra at p. 5 fn. 2. In addition, one reason for adopting the present provisions of section 2056(d)(2) was to correlate the Federal estate and gift tax consequences of refusals 1974 U.S. Tax Ct. LEXIS 125">*135 to accept shares of a decedent's estate. S. Rept. No. 1599, supra at p. 5. If such a refusal is valid under local law, and if certain other conditions are met, the refusal, and consequent transfer to another, does not result in a gift for gift tax purposes. Sec. 25.2511-1(c), Gift Tax Regs.; see Kathryn S. Fuller, 37 T.C. 147">37 T.C. 147 (1961). As the Federal estate and gift taxes are intended to provide consistent tax treatment for disclaimers of inherited property, local law should have the same impact on both taxes. Furthermore, in the case of a surviving spouse who, for purposes of the marital deduction, attempted to shift interests in a decedent's estate, the attempt was not recognized for Federal estate tax purposes because it was not valid under State law. Estate of William 62 T.C. 51">*56 , 52 T.C. 220">52 T.C. 220 (1969); S. Rept. No. 1013, 80th Cong., 2d Sess., Part 2, p. 5 (1948). Considering the legislative history of section 2056(d)(2), its correlation with the gift tax provisions, and the requirements imposed on a surviving spouse in a similar situation, it must be concluded that "disclaimer" means a refusal to accept1974 U.S. Tax Ct. LEXIS 125">*136 inherited property which is effective under local law.

New York State has provided a statutory procedure for renouncing interests in intestate estates. N.Y. Est., Powers & Trusts Law sec. 4-1.3 (McKinney 1967). The statute imposes conditions which the deed failed to meet. A renunciation must be filed with the Surrogate's Court which has jurisdiction over the decedent's estate within 6 months after letters of administration have been issued, unless an extension is granted. Id. at sec. 4-1.3(a). The deed was not filed with the Surrogate's Court of Nassau County by the time of trial herein, and the court never granted an extension of time to file the deed. A renunciation "limited to specified items of the decedent's property is ineffective." Id. at sec. 4-1.3(d). The deed described and conveyed interests in a particular piece of property, which the children had inherited. In addition, the deed did not reflect the grantors' intent to renounce, which a renunciation is required to do. In re Gerke's Estate, 70 Misc. 2d 280">70 Misc. 2d 280, 332 N.Y.S.2d 493 (Wayne County Surr. Ct. 1972). The deed was written in terms of conveying property; it contained1974 U.S. Tax Ct. LEXIS 125">*137 no indication that it was meant to be a refusal of inherited property. For these reasons, it is clear that the deed did not qualify as a renunciation under the applicable New York statutes.

Apparently, compliance with the provisions of the New York Est., Powers & Trusts sec. 4-1.3 (McKinney 1967) is the exclusive method by which a distributee can renounce an intestate share in New York. 70 Misc. 2d 280">In re Gerke's Estate, supra at 332; see In re Estate of Weinig, 66 Misc. 2d 216">66 Misc. 2d 216, 320 N.Y.S.2d 341 (Nassau County Surr. Ct. 1971). Under earlier New York law, an intestate successor could not renounce his distributive share. Practice Commentary, N.Y. Est., Powers & Trusts Law sec. 4-1.3 (McKinney 1967). Upon the intestate's death, the distributees were automatically vested with title to their respective shares of the intestate estate. In re Ramsdill's Estate, 190 N.Y. 492">190 N.Y. 492, 83 N.E. 584">83 N.E. 584 (1908). Consequently, statutory authorization was required to permit intestate successors to renounce their distributive shares. Hence, since the deed did not comply with the 1974 U.S. Tax Ct. LEXIS 125">*138 renunciation procedures under the New York statutes, it was not an effective renunciation or disclaimer under New York law.

Moreover, the deed was not a disclaimer as that term is used in section 2056(d)(2). In the Senate Finance Committee Report (S. Rept. No. 1599, 89th Cong., 2d Sess., p. 5 fn. 2 (1966)), a disclaimer was defined as:

62 T.C. 51">*57 a refusal, made without consideration, which is valid under State law and by reason of which the interest "disclaimed" is received by the surviving spouse either by operation of law or other provision made by the decedent.

Under that definition, a disclaimer must meet several tests: it must constitute a valid refusal under State law to accept the interest; it must be made without consideration; it must also result in the surviving spouse acquiring the property of the decedent by operation of law or by other provision made by the decedent. Not only does the deed fail to qualify because it was not a valid refusal under State law to accept the interest, but it also fails because the deed did not result in Mrs. Caswell acquiring the interests of her children by operation of law or by provision made by the decedent. The interests she acquired1974 U.S. Tax Ct. LEXIS 125">*139 by the deed were acquired directly from the children. Cf. Isaac Harter, Jr., 39 T.C. 511">39 T.C. 511 (1962); Estate of Walter O. Critchfield, 32 T.C. 844">32 T.C. 844 (1959).

The petitioner argued that the deed's failure to comply with the New York statute is immaterial because the pertinent Federal estate tax regulations do not distinguish between disclaimers, and transfers, by persons other than surviving spouses. Sec. 20.2056(d)-1(b), Estate Tax Regs. However, the regulation to which the petitioner has referred is inapposite. The regulation was written pursuant to a prior version of section 2056(d)(2), which provided that a disclaimer by a person other than a surviving spouse would not affect the marital deduction. Sec. 2056(d)(2), as it existed prior to enactment of Pub. L. 89-621 (Oct. 4, 1966). Since such disclaimers had no impact on the marital deduction, there was no reason to accord different treatment to disclaimers, and transfers, by persons other than surviving spouses.

The petitioner also argued that the renunciations filed on August 8, 1968, qualify as disclaimers. The respondent challenges that argument on several grounds: 1974 U.S. Tax Ct. LEXIS 125">*140 The New York statute, in part, provides:

Such renunciation * * * shall be filed * * * within six months after letters of administration have been issued. * * * The time to file * * * a renunciation may be extended, in the discretion of the surrogate, on a petition showing reasonable cause * * * [N.Y. Est., Powers & Trusts Law sec. 4-1.3(a) (McKinney 1967).]

(e) A renunciation may not be made * * * after the renouncing person has accepted all or part of the property of the decedent to which he is entitled * * *. For the purposes of this paragraph, a person accepts a share of the decedent's property if he voluntarily transfers or encumbers, or contracts to transfer or encumber all or part of such share, or accepts delivery or payment of, or exercises control as beneficial owner over all or part thereof, or otherwise indicates acceptance of all or part of such share. [Id. at sec. 4-1.3(e).]

The respondent contended that any extension of the time within which to file a renunciation had to be granted within the initial 6-month period, and since the surrogate's order granting the extension was made long after that period, such order was invalid. In addition, the 62 T.C. 51">*58 respondent1974 U.S. Tax Ct. LEXIS 125">*141 argued that there has been no showing of reasonable cause for an extension. He asserted that the information contained in the petitions filed in the Surrogate's Court has not been made a part of the record of this case, and therefore, there is no evidence before this Court on which it can judge whether there was reasonable cause. The respondent also argued that the renunciations were invalid because they were filed after the children had accepted their distributions from the estate. Finally, the respondent contended that the renunciations failed to qualify as disclaimers under section 2056(d)(2) because they were filed too late.

Under Commissioner v. Estate of Bosch, 387 U.S. 456">387 U.S. 456 (1967), we are not bound by the conclusions reached by the surrogate as to whether he could extend the time for filing the renunciations, as to whether there was reasonable cause for extending the time, and as to whether the renunciations could be filed after the distributees had received their distributions from the estate. However, we need not inquire into the New York law on these matters and express our opinions on them, for it is clear that in any event, the renunciations1974 U.S. Tax Ct. LEXIS 125">*142 were filed too late. Under section 2056(d)(2), a disclaimer must be made prior to the date the Federal estate tax return must be filed. ² The renunciations were made and filed with the Surrogate's Court at least 6 months after the estate tax return was due on January 21, 1968. The petitioner contended that the disclaimers were not untimely, arguing that, since the renunciations were deemed filed on May 9, 1967, for State purposes, they should also be deemed to have been filed on that date for Federal estate tax purposes. The respondent's opposition to that argument is based on his contention that Federal law controls the availability of the marital deduction and that it should not depend on random manipulation of State law.

In enacting section 2056(d)(2), Congress established1974 U.S. Tax Ct. LEXIS 125">*143 an outer limit on the time during which an effective disclaimer could be executed. Presumably, it believed that if the interests in an estate were to be shifted, the shifting should be completed by the time the estate tax return was to be filed and the tax computed.

The exertion of * * * [Congress'] power [to tax income] is not subject to state control. It is the will of Congress which controls, and the expression of its will in legislation, in the absence of language evidencing a different purpose, is to be interpreted so as to give a uniform application to a nationwide scheme of taxation. State law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law. [Citations omitted; Burnet v. Harmel, 287 U.S. 103">287 U.S. 103, 287 U.S. 103">110 (1932).]

62 T.C. 51">*59 There is no reason to believe that Congress contemplated that its restriction could be circumvented by a nunc pro tunc order of a State court made after the due date of the Federal estate tax return. If such a nunc pro tunc order were to be given effect, the Federal requirement could become meaningless. Daine v. Commissioner, 168 F.2d 4491974 U.S. Tax Ct. LEXIS 125">*144 (C.A. 2, 1948), affirming 9 T.C. 47">9 T.C. 47 (1947); M. T. Straight Trust, 24 T.C. 69">24 T.C. 69 (1955), affd. 245 F.2d 327 (C.A. 8, 1957); cf. Samuel S. Davis, 55 T.C. 416">55 T.C. 416 (1970); see generally Riley Co. v. Commissioner, 311 U.S. 55">311 U.S. 55 (1940); Estate of Frederick L. Flinchbaugh, 1 T.C. 653">1 T.C. 653 (1943). Any time that a State court could be convinced to enter a nunc pro tunc order, a disclaimer could be made even though the time limit established by Congress had long since passed. For these reasons, it seems clear that the nunc pro tunc order of the Surrogate's Court should be disregarded in determining whether the disclaimer was executed within the time limit established by Congress, and since the renunciations were in fact filed more than 6 months after that time limit, they do not qualify under section 2056(d)(2).

Decision will be entered for the respondent.