UNITED STATES TAX COURT



        ESTATE OF PAUL C. GRIBAUSKAS, DECEASED,
       ROY L. GRIBAUSKAS AND CAROL BEAUPARLANT,
              CO-EXECUTORS, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3107-98.                       Filed March 8, 2001.


     In late 1992, D and his former spouse won a
Connecticut LOTTO prize payable in 20 annual
installments. At the time of his death in 1994, D was
entitled to receive 18 further annual payments of
$395,182.67 each.

     Held: The lottery payments must be included in
D’s gross estate and valued for estate tax purposes
through application of the actuarial tables prescribed
under sec. 7520, I.R.C.



Michael J. Kopsick and William J. Dakin, for petitioner.

Carmino J. Santaniello, for respondent.
                                 - 2 -

                              OPINION


     NIMS, Judge:   Respondent determined a Federal estate tax

deficiency in the amount of $403,167 for the estate of Paul C.

Gribauskas (the estate).   The sole issue for decision is whether

an interest held at his death by Paul C. Gribauskas (decedent),

in 18 annual installments of a lottery prize, must be valued for

estate tax purposes through application of the actuarial tables

prescribed under section 7520.

     Unless otherwise indicated, all section references are to

sections of the Internal Revenue Code in effect as of the date of

decedent’s death, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

                            Background

     This case was submitted fully stipulated pursuant to Rule

122, and the facts are so found.    The stipulations of the

parties, with accompanying exhibits, are incorporated herein by

this reference.   Decedent was a resident of West Simsbury,

Connecticut, when he died intestate in that State on June 4,

1994.   His estate has since been administered by the probate

court for the District of Simsbury.      Roy L. Gribauskas and Carol

Beauparlant, decedent’s siblings, are named co-executors of his

estate.   At the time the petition in this case was filed, Roy

Gribauskas resided in Southington, Connecticut, and Carol

Beauparlant resided in Berlin, Connecticut.
                                - 3 -

The Connecticut LOTTO

     In September of 1983, the State of Connecticut (the State)

commenced running a biweekly “LOTTO” drawing.   During all

relevant periods, this lottery was administered by the State of

Connecticut Revenue Services, Division of Special Revenue (the

Division), in accordance with regulations promulgated to govern

the game’s operation.   Individuals participate in the lottery by

purchasing for $1.00 a ticket on which they select six numbers.

If the six numbers so chosen match those randomly selected at the

next LOTTO drawing, the ticketholder becomes entitled to a prize

of $1,000,000 minimum, with a potentially greater award available

if ticket purchases have increased the size of the jackpot.

LOTTO prizes in excess of $1,000,000 are paid in 20 equal annual

installments, each made by means of a check from the State

payable to the prizewinner and drawn on funds in the custody of

the State Treasurer.    Winners are not entitled to elect payment

in the form of a lump sum.   As in effect during the year of

decedent’s death, the following administrative regulations

prohibited a LOTTO prizewinner from assigning or accelerating

payment of the installments:

     (d) Prizes non-assignable. A prize to which a
     purchaser may become entitled shall not be assignable.

     (e) Payments not accelerated. Under no circumstances,
     including the death of a prize winner, shall installment
     payments of prize money be accelerated. In all cases such
     payments shall continue as specified in the official
     procedures. The division shall make such payments payable
                               - 4 -

     to the fiduciary of the decedent prize winners’[sic] estate
     upon receipt of an appropriate probate court order
     appointing such fiduciary. The division shall be relieved
     of any further responsibility or liability upon payment of
     such installment prize payments to the fiduciary of the
     estate of a deceased installment prize winner or the heirs
     or beneficiaries thereof named in an appropriate probate
     court order. [Conn. Agencies Regs. sec. 12-568-5(d) and (e)
     (1993).]

     The Division was authorized to, and did, fund its LOTTO

obligations through the periodic purchase of commercial

annuities.   The Division was named as owner of these contracts,

and all payments made thereunder were remitted to the State.    No

specific prizewinner was either a party to or a named beneficiary

of the annuity contracts.   The record does not reflect the cost

of these contracts, presumably because the State typically

acquired a combined annuity to provide for payment of all LOTTO

prizes won during a specified period of time.   Additionally,

payment of awards to lottery winners was not guaranteed by any

State agency.   However, at no time through the submission of this

case had the State ever defaulted on amounts due to the

approximately 2,000 persons who had won LOTTO jackpots since the

game’s inception in 1983.

Decedent’s LOTTO Prize

     In late 1992, decedent and his wife won a Connecticut LOTTO

prize in the amount of $15,807,306.60.   The award was payable in

20 annual installments of $790,365.34 each, commencing on

December 3, 1992.   After receipt of the first such installment,
                                - 5 -

decedent and his wife were divorced.    In conjunction with the

ensuing settlement and division of the property rights of the

couple, each spouse was to receive one-half of the remaining

lottery installment payments.   Accordingly, $395,182.67, less

applicable Federal and State withholding taxes, was remitted to

each on December 3, 1993.   Thereafter, on June 4, 1994, decedent

died unexpectedly while still entitled to 18 further annual

payments of $395,182.67 each.   Since obtaining an appropriate

court order as required by the Connecticut LOTTO regulations,

these installments have been remitted yearly to the estate.

The Estate Tax Return

     A United States Estate (and Generation-Skipping Transfer)

Tax Return, Form 706, was timely filed with respect to decedent’s

estate on September 11, 1995.   Therein, the estate elected to

report the value of assets as of the December 3, 1994, alternate

valuation date.   Decedent’s interest in the lottery installments

was characterized on the return as an “Unsecured debt obligation

due from the State of Connecticut arising from winning the

Connecticut Lottery” and was included in the gross estate at the

alleged present value of $2,603,661.02.    Respondent subsequently

determined that the present value of the payments should have

been reported as $3,528,058.22 in accordance with the annuity

tables prescribed under section 7520, resulting in the $403,167

deficiency in estate tax that is the subject of this proceeding.
                                  - 6 -

                                Discussion

I.   General Rules

     As a general rule, the Internal Revenue Code imposes a

Federal tax on “the transfer of the taxable estate of every

decedent who is a citizen or resident of the United States.”

Sec. 2001(a).     Such taxable estate, in turn, is defined as the

“value of the gross estate”, less applicable deductions.     Sec.

2051.   Section 2031(a) then specifies that the gross estate

comprises “all property, real or personal, tangible or

intangible, wherever situated”, to the extent provided in

sections 2033 through 2045.

     Section 2033 broadly states that “The value of the gross

estate shall include the value of all property to the extent of

the interest therein of the decedent at the time of his death.”

Sections 2034 through 2045 then explicitly mandate inclusion of

several more narrowly defined classes of assets.     Among these

specific sections is section 2039, which reads as follows:

     SEC. 2039.    ANNUITIES.

          (a) General.--The gross estate shall include the
     value of an annuity or other payment receivable by any
     beneficiary by reason of surviving the decedent under
     any form of contract or agreement entered into after
     March 3, 1931 (other than as insurance under policies
     on the life of the decedent), if, under such contract
     or agreement, an annuity or other payment was payable
     to the decedent, or the decedent possessed the right to
     receive such annuity or payment, either alone or in
     conjunction with another for his life or for any period
     not ascertainable without reference to his death or for
     any period which does not in fact end before his death.
                               - 7 -

          (b) Amount Includible.--Subsection (a) shall apply
     to only such part of the value of the annuity or other
     payment receivable under such contract or agreement as
     is proportionate to that part of the purchase price
     therefor contributed by the decedent. For purposes of
     this section, any contribution by the decedent’s
     employer or former employer to the purchase price of
     such contract or agreement * * * shall be considered to
     be contributed by the decedent if made by reason of his
     employment.

     An interest included in the gross estate pursuant to one of

the above-referenced provisions must then be valued.   As to this

endeavor, the general rule is set forth in section 20.2031-1(b),

Estate Tax Regs.:

     The value of every item of property includible in a
     decedent’s gross estate under sections 2031 through
     2044 [now 2045 due to addition and renumbering] is its
     fair market value at the time of the decedents’s death,
     except that if the executor elects the alternate
     valuation method under section 2032, it is the fair
     market value thereof at the date, and with the
     adjustments, prescribed in that section. The fair
     market value is the price at which the property would
     change hands between a willing buyer and a willing
     seller, neither being under any compulsion to buy or to
     sell and both having reasonable knowledge of relevant
     facts. * * *

     However, section 7520, enacted as part of the Technical and

Miscellaneous Revenue Act of 1988, Pub. L. 100-647, sec. 5031(a),

102 Stat. 3342, 3668, provides a specific rule for valuing

enumerated forms of property interests, as follows:

     SEC. 7520.   VALUATION TABLES.

          (a) General Rule.--For purposes of this title, the
     value of any annuity, any interest for life or a term
     of years, or any remainder or reversionary interest
     shall be determined--
                                - 8 -

                 (1) under tables prescribed by the Secretary,
           and

                (2) by using an interest rate (rounded to the
           nearest 2/10ths of 1 percent) equal to 120 percent
           of the Federal midterm rate in effect under
           section 1274(d)(1) for the month in which the
           valuation date falls. * * *

          (b) Section Not To Apply for Certain Purposes.--
     This section shall not apply for purposes of part I of
     subchapter D of chapter 1 [relating to qualified plans
     for deferred compensation] or any other provision
     specified in regulations.

     For transfer tax purposes, regulations promulgated under

section 7520 provide that the relevant actuarial tables for

valuing interests covered by the statute are contained in section

20.2031-7, Estate Tax Regs.   See sec. 20.7520-1(a)(1), Estate Tax

Regs.; sec. 25.7520-1(a)(1), Gift Tax Regs.; see also sec.

20.2031-7T(d)(5), Example (4), Temporary Estate Tax Regs., 64

Fed. Reg. 23187, 23214 (Apr. 30, 1999) (with effective date May

1, 1999, but illustrating the calculation for valuing an annuity

of $10,000 per year payable to a decedent or the decedent’s

estate).

     The regulations also delineate exceptions to the mandatory

use of the tables.   In the estate tax context, paragraph (a) of

section 20.7520-3, Estate Tax Regs., lists exceptions effective

as of May 1, 1989, while paragraph (b) gives additional

limitations effective with respect to estates of decedents dying
                               - 9 -

after December 13, 1995.   See sec. 20.7520-3(c), Estate Tax Regs.

These exceptions, where pertinent, will be discussed in greater

detail below.

II.   Contentions of the Parties

      The fundamental disagreement between the parties concerns

whether the stream of lottery payments constitutes an annuity

which must be valued pursuant to the actuarial tables prescribed

under section 7520.

      The estate concedes that the prize’s value is properly

included in calculating decedent’s gross estate under the general

rule of section 2033, as “an unsecured debt obligation” in which

decedent had an interest at death.     However, the estate denies

that the payments are similarly includible as an annuity under

section 2039.   According to the estate, the lottery prize fails

to meet the specific requirements set forth in section 2039(a)

for classification as an annuity under that section.     Moreover,

even if such criteria were deemed satisfied, the estate maintains

that operation of section 2039(b) would result in including only

that portion of the asset equal to the $1.00 purchase price, a de

minimis amount.

      From these propositions, and to a significant degree

apparently equating the term “annuity” in section 2039 with use

of the word in section 7520, the estate argues that the LOTTO

payments need not be valued under the prescribed actuarial
                               - 10 -

tables.   Rather, it is the estate’s position that the broader

willing-buyer, willing-seller standard should control, with

factors such as lack of marketability taken into account in

discounting the prize to present value.

     In the alternative, the estate contends that even if the

lottery award is held includible in decedent’s gross estate as an

annuity under section 2039, deviation from the prescribed tables

is warranted in this case.    The estate claims that the tables may

be disregarded when their use would produce an unreasonable

result and that, due to restrictions on the asset in question,

such a situation is present here.

     Conversely, respondent asserts that decedent’s right to 18

fixed annual payments constitutes an annuity which must be valued

pursuant to section 7520.    With respect to section 2039,

respondent maintains that the lottery installments satisfy all

elements for inclusion in the gross estate under subsection (a)

and that no grounds are provided in subsection (b) for limiting

such inclusion.   However, regardless of the specific

applicability of section 2039, it is respondent’s position that

the LOTTO prize is an interest to which section 7520 applies.

Respondent avers that the statute cited for inclusion in the

gross estate is not dispositive of whether tabular valuation is

mandated.   Rather, it is the nature of the payment stream at

issue that controls, and respondent contends that the periodic
                              - 11 -

installments here exhibit characteristics consistent with rights

properly valued under the section 7520 tables.   Moreover,

respondent alleges that neither any general regulatory exceptions

nor particular features such as lack of marketability permit

departure from the tables in the circumstances of this case.

     Hence, in essence the parties agree that the value of the

lottery installments is to be included in decedent’s gross estate

and that the appropriate methodology for ascertaining such value

is to discount the stream of payments to present value.    They

advance opposing theories, however, for arriving at the relevant

discount rate.   Section 7520 mandates use of a 9.4-percent

discount rate for annuities valued as of December 3, 1994, and

respondent contends that this statute is applicable to the facts

before us.   In contrast, the estate argues that the discount rate

should be determined by consideration of what a willing buyer

would pay a willing seller for the asset at issue and, further,

apparently finds that a discount rate of approximately 15

percent, adjusting for risk, inalienability, illiquidity, and

lack of marketability, is proper here.   Lastly, we note that for

purposes of disposing of the legal issues raised by this

proceeding, the parties have stipulated that if the Court

determines departure from the annuity tables is warranted, the
                                  - 12 -

value of the lottery installment payments as of the alternate

valuation date will be deemed to be the $2,603,661.02 claimed in

the estate tax return.

III.    Analysis

       A.     Relevance of Section 2039

       As a threshold matter, this case presents a preliminary

question regarding the relationship among sections 2033, 2039,

and 7520.       Specifically, is finding that an interest fails to

meet the criteria for inclusion in the gross estate as an annuity

under section 2039, and is so included only under section 2033,

determinative of whether the interest is an annuity within the

meaning of section 7520?       We answer this inquiry in the negative

for the reasons detailed below.

       The purpose of section 2039, by its terms, is to effect

inclusion in the gross estate of annuity or payment rights

meeting certain enumerated criteria.       At the same time,

regulations promulgated under the statute indicate that section

2039 does not provide the exclusive definition of interests which

may be considered an annuity for purposes of the Internal Revenue

Code.       Section 20.2039-1(a), Estate Tax Regs., recites the

following:       “The fact that an annuity or other payment is not

includible in a decedent’s gross estate under section 2039(a) and

(b) does not mean that it is not includible under some other

section of part III of subchapter A of chapter 11 [comprising
                                - 13 -

sections 2031 through 2046].”    The inference to be drawn from

this statement is that certain interests properly characterized

as an “annuity” within the meaning of the estate tax laws may not

fall within the purview of section 2039.

     This inference is further supported by consideration of the

rationale underlying enactment of section 2039.    It has been

recognized that “Congress intended to include in the gross estate

of a decedent for estate tax purposes the value of interests

which under traditional common law concepts were never part of

the ‘estate.’”   Gray v. United States, 

, 1097 (3d

Cir. 1969).   Yet an annuity payable to a decedent’s estate would

have been considered an estate asset and subject to probate.

Additionally, examples contained in both the legislative history

and the current regulations reveal a focus on nonprobate assets

such as annuities payable to a designated surviving beneficiary,

joint and survivor annuities, and employer-provided retirement

annuities payable to a named beneficiary.    See S. Rept. 1622, 83d

Cong., 2d Sess. (1954); H. Rept. 1337, 83d Cong., 2d Sess.

(1954); sec. 20.2039-1, Estate Tax Regs.    It therefore would seem

reasonable to conclude that section 2039 did not and does not

purport to cover the universe of potential annuities that may be

subject to inclusion and valuation for estate tax purposes.

     Case law also comports with this interpretation.    For

instance, in Arrington v. United States, 

, 145-146
                              - 14 -

(1995), affd. without published opinion 

(Fed. Cir.

1997), the court described the interest at issue in that case, a

stream of payments to be received by the decedent’s estate under

a lawsuit settlement agreement, as follows:

          This settlement agreement also provided for the
     funding of an annuity “for the sole use and benefit of
     WILLIAM ARRINGTON.” Specifically, the annuity would be
     for
          the sum of Two Thousand Twenty Seven and 86/100
          ($2,027.86) Dollars per month beginning on January
          7, 1990 for the remainder of WILLIAM ARRINGTON’s
          life, guaranteed for a minimum of three hundred
          and sixty (360) months. In the event of WILLIAM
          ARRINGTON’s death prior to the expiration of three
          hundred and sixty (360) months, the remaining
          monthly payments in the guaranteed period shall
          continue to be paid as they fall due on a monthly
          basis to the estate of WILLIAM ARRINGTON and not
          in a lump sum.

The court then went on to hold the installments includible in the

decedent’s gross estate under section 2033 on the grounds that

the decedent was “the beneficial owner of the annuity”.   

150.   Arrington v. United 

, thus

illustrates that an annuity classification and a section 2033

inclusion are not mutually exclusive concepts.

     Consequently, based on the foregoing authorities, we are

satisfied that the particular section under which an interest

might be included in the gross estate is not dispositive of the

interest’s status as an annuity which potentially must be valued

under section 7520.   Since the estate has conceded, and we

concur, that the subject lottery payments are includible under
                                - 15 -

section 2033, we find it unnecessary to probe whether the

installments would also satisfy all of the specific criteria for

inclusion under section 2039.    Because an interest need not meet

each of the particular requirements of that section to be

considered an annuity, the only arguments made in connection with

section 2039 that are directly relevant to the dispositive

section 7520 issue are those concerning the meaning of “annuity”

as a stand-alone term.    Accordingly, we proceed to analysis of

these contentions, and we do so in the context of section 7520’s

use of the word.

     B.   Meaning of Annuity as Used in Section 7520

     We are now faced squarely with the question of what is meant

by the term “annuity” in section 7520.     The statute itself

contains no definition beyond the phrase “any annuity, any

interest for life or a term of years, or any remainder or

reversionary interest”.    Sec. 7520(a).   The regulations under

section 7520, as in effect on December 3, 1994, are equally

devoid of explicit guidance.    Furthermore, we are aware of no

cases offering a definition of the word in the context of section

7520’s use thereof.   In such circumstances, the general rule is
                               - 16 -

that “a statutory term should be given its normal and customary

meaning.”   Ashland Oil, Inc. v. Commissioner, 

, 356

(1990).

     Black’s Law Dictionary 88 (7th ed. 1999) defines annuity as

“An obligation to pay a stated sum, usu. monthly or annually, to

a stated recipient” and as “A fixed sum of money payable

periodically”.   Webster’s Third New International Dictionary 88

(1976) provides that an annuity is “an amount payable yearly or

at other regular intervals (as quarterly) for a certain or

uncertain period”.   We likewise pointed out in Estate of Shapiro

v. Commissioner, T.C. Memo. 1993-483, that “An ‘annuity’ is

commonly defined as a fixed, periodic payment, either for life or

a term of years.”    Additionally, although not directly applicable

here due to the December 14, 1995, effective date, we note that

section 20.7520-3(b)(1)(i)(A), Estate Tax Regs., now contains the

analogous statement that “An ordinary annuity interest is the

right to receive a fixed dollar amount at the end of each year

during one or more measuring lives or for some other defined

period.”

     In the instant case, the estate acknowledges that the LOTTO

installments are consistent with these definitions.   However, the

estate further maintains that such definitions, standing alone,

are overinclusive, in that they focus solely on the payment
                              - 17 -

stream without taking into account the nature of the underlying

corpus or asset giving rise to the right to payments.   According

to the estate:

     An annuity is generally defined as a right to receive
     fixed, periodic payments, either for life or a term of
     years, but an annuity exists only by virtue of a corpus
     invested to produce an income stream for a specified
     term pursuant to a contract or other agreement.
     Contrary to the suggestion made by the Commissioner
     that the Stipulation of Facts regarding the source and
     reason for the payments is immaterial, any
     determination of the nature of this asset requires an
     analysis of the underlying characteristics and factors
     that create the right to those payments. * * *

     The estate proceeds to offer a litany of features which

would characterize what, in the estate’s estimation, would

customarily be understood as an annuity.   As described by the

estate, an annuity is purchased for a premium substantially

greater than $1.   The annual installments are then derived from

this corpus invested by or for the recipient, such that an

annuity contract provides for the liquidation of an asset.     The

amount of the installments, in turn, is a function not only of

the invested contribution but also typically of the annuitant’s

age, gender, health, and the type of annuity contract purchased.

With respect to contract type, options available to the

purchaser, each with a consequent impact on benefit level,

include an immediate or a deferred benefit, a single or an annual

premium, a fixed or a variable payment, and a termination of

benefits on death or a guaranteed minimum number of installments.
                              - 18 -

In addition, an annuity contract will usually provide the owner

with specific rights during the period the agreement remains in

force.   The contract can generally be alienated and assigned, and

the owner can elect to name a beneficiary of the contract.

     In contrast, the estate emphasizes that a LOTTO prize is the

result of a $1 wager, not a substantial invested premium.    The

annual installments are derived from the income and investments

of the State, not from the corpus supplied by the purchaser.     The

winner’s age, gender, or health play no role in determining the

benefit level.   Additionally, the winner lacks any ability to

make choices regarding payment commencement, amount, duration, or

termination, and cannot assign the installments or elect a

beneficiary to receive installments upon the winner’s death.

     Having thus attempted to demonstrate that the lottery prize

does not resemble a typical annuity valued under actuarial

tables, the estate then goes on to cite a variety of assets

yielding payment streams which, according to the estate, are

valued not under section 7520 but rather by taking into account

the unique characteristics of and restrictions on the asset.     The

implicit invitation is that we determine that the installments

here are more analogous to these alternatives and that similar,

item-specific fair market principles should be used in the

prize’s valuation.
                              - 19 -

     The estate discusses notes receivable, leasehold payments,

patents, and royalties.   We recount features of these assets and

their valuation as stipulated by the parties, without opining as

to the validity thereof, for purposes of framing the parties’

respective positions.   A note receivable represents the promise

of the maker to pay the holder a definite sum of money.    Notes

receivable, although exhibiting a wide array of discrete terms

and conditions, generally are the product of an agreement that

provides for a series of payments over a period not necessarily

determined by reference to the holder’s life.   Pursuant to

section 20.2031-4, Estate Tax Regs., the fair market value of a

note is presumed to be its unpaid principal amount plus accrued

interest.   However, this presumption can be refuted by evidence

that the interest rate, maturity date, collection risk, maker

solvency, collateral sufficiency, or other causes warrant a

lesser value.

     A leasehold interest is the product of an agreement

providing for a lessor to receive payment for a lessee’s use of

property.   Valuation of the resultant payment stream typically

relies upon an income capitalization approach to discount the

rental installments to present value.   Factors considered in

calculating an appropriate capitalization rate include the nature

of the property, the positive and negative physical attributes of
                              - 20 -

the property, the term of the lease, the market rate of rent for

similar properties, and any risk factors that could affect

receipt of payments.

     A patent is an exclusive right to make, use, and sell a

patented item.   As in the case of a leasehold, the payment stream

available to the holder of a patent is valued by quantifying a

variety of factors to reach an appropriate discount or

capitalization rate.   Such elements include the age of the

patent, its economic and legal life, the income it generates, the

products with which the underlying item competes, the risks of

the relevant industry, and the status of the economy.

     A royalty is the income received from another for the

other’s use of property, and the term is usually employed in

reference to mineral rights, copyrighted works, trademarks, and

franchise interests.   The value of a right to royalty payments is

again based upon the particular characteristics and risks

associated with the payment stream, taking into account the

annual income produced, the length of the agreement’s term, the

payment history, the possibility of sales or volume reduction

with respect to the underlying asset, any pertinent governmental

and industrial restrictions, and the nature of the underlying

asset (including the quantity and quality of reserves for mineral

and oil interests).
                              - 21 -

     Thus, we have been presented, on one hand, with elements the

estate believes characterize the type of asset that should be

considered an annuity subject to valuation under prescribed

tables and, on the other hand, with features exhibited by other

assets yielding payment streams and used to derive an appropriate

fair market value apart from mere reference to actuarial tables.

The estate’s position is that the LOTTO prize involves a unique

bundle of rights and restrictions which, like those inherent in

notes, leaseholds, patents, and royalties, warrants an

individualized approach to valuation.   Respondent, in contrast,

maintains that there exist no pertinent differences between the

lottery payments and other payment streams valued using the

standardized tabular approach.

     Taking into account the above body of information and the

parties’ contentions with respect thereto, we conclude that

decedent’s lottery winnings constitute an annuity within the

meaning of section 7520.   In reaching this decision, we first

consider the characteristics of an annuity, both as portrayed by

the estate and as reflected in case law.   Second, we focus on

comparing these annuity features with those of assets which the

parties agree are valued other than as annuities.   Third, we

examine how the lottery payments fit within the framework so

developed.
                               - 22 -

     1.    Analysis of Annuity Characteristics

     We begin with a few comments on the relevance of the

estate’s submissions regarding the characteristics of a typical

annuity.    While we do not dispute that the features cited may be

widely present in commercially purchased annuity contracts, we

point out that to the extent these elements are not also

representative of so-called private annuities, they offer little

insight into the nature of interests intended to be treated under

the section 7520 tables.

     Section 7520(b) states that the section shall not apply for

purposes “specified in regulations.”    Section 20.7520-1, Estate

Tax Regs., directs generally that annuities be valued in

accordance with section 20.2031-7, Estate Tax Regs., and the

tables therein.    However, section 20.2031-7(b), Estate Tax Regs.,

expressly excepts commercial annuities from its operation, as

follows:    “The value of annuities issued by companies regularly

engaged in their sale * * * is determined under § 20.2031-8.”

Section 20.2031-8(a)(1), Estate Tax Regs., in turn provides that

the value of such contracts “is established through the sale by

that company of comparable contracts.”    Since the State of

Connecticut is not in the business of selling annuity contracts,

we clarify that the attributes of a commercial annuity are

relevant here only in so far as they parallel what would be found

with respect to a private annuity.
                              - 23 -

     Although there are few cases applying section 7520 to such

private annuities, this Court in Estate of Cullison v.

Commissioner, T.C. Memo. 1998-216, affd. without published

opinion 

(9th Cir. 2000), characterized an

arrangement as a private annuity and required its valuation under

section 7520.   The agreement at issue there provided that the

decedent would convey all of her interest in certain farmland to

her grandchildren by warranty deed and that the grandchildren

would pay to her $311,165 annually for the remainder of her life.

See 

further specified that the decedent would

have no further interest in the land after the date the agreement

was signed and that the land would not be security for the

annuity payments.   See 

whether any portion of the land transfer

constituted a gift, the estate argued that the annuity was

properly valued apart from the section 7520 tables, on the basis

of an interest rate supposedly reflecting that available on land

sale contracts in the area.   See 

pointed out

that “Unlike a seller under a land sale contract, decedent under

the private annuity would have only an unsecured right to receive

a specified annual payment during her life.”    

omitted).   We then held that such an interest was within the

scope of section 7520.   See 

-

     In addition, cases decided under law preceding section

7520’s effective date offer a degree of guidance on the concept

of a private annuity for transfer tax purposes.    Even prior to

the enactment of section 7520, estate and gift tax regulations

had long contained actuarial tables for use in valuing private

annuities, life estates, and terms of years.    See Simpson v.

United States, 

, 549 (1920); Dix v. Commissioner, 

, 800 (1966), affd. 

(4th Cir. 1968); Estate

of Cullison v. 

; Estate of Shapiro v.

Commissioner, T.C. Memo. 1993-483.     While no statute mandated

their application, courts generally approved of and often

required their use.   See Dix v. 

at 801;

Estate of Shapiro v. 

.

     For instance, in Dix v. 

at 798-801, we

concluded that the regulatory tables were to be used in valuing a

lifetime “private annuity” paid pursuant to an agreement stating

as follows:

          WHEREAS, THE transferor is willing to bargain,
     sell, and transfer to the transferees all the
     securities so listed in Schedule ‘A’, provided however
     that transferees, and each of them, will agree to pay
     the transferor a sum certain annually, as hereinafter
     set forth, regardless of the value of the securities so
     transferred and regardless of the income therefrom
     received by transferees * * *

     Similarly, in Estate of Shapiro v. 

, the

will of the decedent’s predeceased wife had established a trust

and instructed the trustee “pay to my husband or apply for his
                               - 25 -

benefit an annuity of Three Hundred Thousand ($300,000.00)

Dollars per year from my date of death during his life”.      We held

that the bequest was “properly characterized as a lifetime

annuity under section 20.2031-7(a)(2), Estate Tax Regs.”, and

properly valued by the tables prescribed thereunder.    

cases, we are satisfied that the definition of

annuity for purposes of section 7520 is broader than the estate

suggests.    Estate of Cullison v. 

, involved

neither a payment stream derived from an invested corpus nor the

liquidation of an asset.   The payments in Dix v. 

, were equally independent of any underlying corpus.     The

bequest in Estate of Shapiro v. 

, bears little

resemblance to the contractual relationship described by the

estate--purchase premiums, benefit options, beneficiary

elections, etc., played no role in the annuity’s genesis or

operation.

     Moreover, the authorities discussed above also make clear

that a private annuity may be nothing more or less than an

unsecured debt obligation.   Consequently, the estate’s repeated

labeling of the LOTTO prize as such in no way disqualifies it

from annuity status.   That said, we turn to those assets that the

parties have agreed are in fact not considered annuities for

valuation purposes.
                              - 26 -

     2.   Comparison of Nonannuity and Annuity Characteristics

     In seeking to ascertain what might distinguish notes

receivable, leasehold payments, patent rights, and royalties from

the annuities previously examined, we look first at notes

receivable.   Furthermore, our review thereof convinces us that

these assets differ from annuities in a fundamental respect.     It

is the concept of interest which renders valuation of a note a

very different enterprise from valuation of an annuity.     Because

an annuity involves a series of fixed payments which bear no

interest, it is actuarially valued by discounting the stream to

present value.   The purpose of doing so is to account for the

time value of money.   In contrast, because the vast majority of

notes are interest-bearing, no such calculation is required.     The

issue of time value is addressed by charging interest on the face

amount, such that the outstanding principal typically corresponds

to the present value without need for further manipulation.      This

idea, in turn, provides the rationale which supports the rule set

forth in section 20.2031-4, Estate Tax Regs., presuming a value

equal to the unpaid principal amount and listing the interest

rate (or, implicitly, lack of a market rate of interest) as a

potential basis for deviation.   A similar approach presuming a

value equal to the “face” dollar amount of annuity installments

could not reasonably be suggested.
                              - 27 -

     As regards leasehold, patent, and royalty payments, each of

these assets, unlike an annuity, derives from the use of an

underlying item of tangible or intangible property that exists

separate and apart from the agreement to make a series of

remittances.   Consequently, the anticipated payment stream can be

affected by a wide variety of external market forces that operate

on and impact the worth of the underlying asset.      This injects

into the valuation of these payment streams risks and

considerations beyond simply the time value of money.

     Hence, our review of a sample of nonannuity assets leads us

to conclude that the common definition of an annuity is sound.       A

promise to make a series of fixed payments, without more, may

generally be classified as an annuity.      Conversely, if the

agreement is tied to something further, such as an independent

underlying asset or an interest rate, a different

characterization may well be more appropriate.      With this

framework in mind, we next focus specifically on decedent’s

lottery prize.

     3.   Examination of Lottery Payments

     Based on the principles formulated above, we conclude that

decedent’s LOTTO winnings are properly characterized for tax

purposes as an annuity.   As the estate acknowledges, the asset at

issue here derives solely from the State’s promise to make a

series of fixed payments.   The right to installments is not
                               - 28 -

dependent on any particular underlying asset, is not subject to

alteration as a result of external market forces, and does not

bear interest.   Accordingly, while we see features which

distinguish the payment streams generated by each of the

nonannuity assets brought to our attention from the private

annuities reflected in case law, we find no such characteristics

weighing upon decedent’s right to the lottery installments.

     Moreover, in probing what attributes might differentiate

some other form of payment from an annuity, we note a conspicuous

absence.   The cases discussed above which declare certain payment

arrangements to be a private annuity never address the

contractual options available to the payee for taking advantage

of his or her right to the installments.   Whether this right may

be transferred or assigned are elements which fail to enter into

the courts’ calculus.   Likewise, of the stipulated factors that

apparently render note, leasehold, patent, and royalty payments

unique and individually valued, none reflects any concern with

the payee’s ability to manipulate the right to receive

installments.    Additionally, because the estate so emphasizes the

concept of marketability, we observe as a parallel that the

parties provided by stipulation that notes come in a wide variety

of types including, among other things, nonassignable.   Yet no

one could contend that lack of assignability converts a note into

some other form of asset.   Hence, we are satisfied that such
                               - 29 -

issues are largely subsidiary to determining the basic

characterization, in the first instance, of a payment right.

Whether these features affect the value in a particular case of

an asset so classified is a question which we shall take up

below.    At this juncture, we first hold that decedent’s lottery

winnings constitute an annuity for tax purposes and within the

meaning of section 7520.

     C.    Valuation of Lottery Installments Under Section 7520

     Interests within the purview of section 7520 must be valued

in accordance with the prescribed actuarial tables unless they

can satisfy the requisites for an exception to the statute’s use.

As previously indicated, section 20.7520-3(a), Estate Tax Regs.,

provides a list of exceptions effective May 1, 1989, none of

which has been cited as on point here, and section 20.7520-3(b),

Estate Tax Regs., enumerates additional exceptions effective

after December 13, 1995.    See sec. 20.7520-3(c), Estate Tax Regs.

While these latter limitations are not directly applicable to

1994, the preamble to T.D. 8630, 1996-1 C.B. 339, which adopted

paragraph (b) as an amendment to the final regulations under

section 7520, addressed the relationship of the new provisions to

prior law as follows:

          One commentator suggested that the tables
     prescribed by the regulations must be used for valuing
     all interests transferred between April 30, 1989 (the
     effective date of section 7520) and December 13, 1995
     (the effective date of the regulations). However,
     these regulations generally adopt principles
                             - 30 -

     established in case law and published IRS positions.
     * * * There is no indication that Congress intended to
     supersede this well-established case law and
     administrative ruling position when it enacted section
     7520. Consequently, in the case of transfers prior to
     the effective date of these regulations, the question
     of whether a particular interest must be valued based
     on the tables will be resolved based on applicable case
     law and revenue rulings.

     Accordingly, the estate references both case law and section

20.7520-3(b)(1)(ii), Estate Tax Regs., to establish that

decedent’s lottery winnings, even if considered an annuity under

section 7520, need not be valued by means of the prescribed

tables.

     At the time section 7520 was enacted, this and other courts

had long accepted as a general rule that interests covered by

then-existing regulatory tables were to be valued thereunder

“‘unless it is shown that the result is so unrealistic and

unreasonable that either some modification in the prescribed

method should be made * * * or complete departure from the method

should be taken, and a more reasonable and realistic means of

determining value is available.’”   Vernon v. Commissioner, 

, 489 (1976) (quoting Weller v. Commissioner, 

, 803 (1962)); see also Berzon v. Commissioner, 

,

531-532 (2d Cir. 1976), affg. 

(1975); Continental

Ill. Natl. Bank & Trust Co. v. United States, 

, 594

(7th Cir. 1974); Froh v. Commissioner, 

, 3-4 (1993),

affd. without published opinion 

(9th Cir. 1995);
                              - 31 -

Estate of Christ v. Commissioner, 

, 535-537 (1970),

affd. 

(9th Cir. 1973).    It was equally well

recognized that the burden of proving that this standard was met

rested on the party seeking to deviate from the tables.      See Bank

of Calif. v. United States, 

, 759 (9th Cir. 1982);

Vernon v. 

at 489; Estate of Christ v.

at 535.

     In the instant case, the estate maintains that the annuity

tables yield an unrealistic and unreasonable result for the

decedent’s winnings on the grounds that “tabular valuation fails

to consider (1) the unsecured nature of the LOTTO prize

obligation, (2) the lack of a corpus from which to draw upon, and

(3) the inability to assign, sell or transfer the interest.”     The

estate asserts that the nearly $925,000 difference between an

appraised value which purportedly takes these features into

account and the section 7520 value shows failure by the tables to

produce a realistic result.   Respondent’s position, on the other

hand, is that case law authorizes departure from the tables only

where one or more of the “assumptions on which the tables are

based, namely probability of survival of the measuring life,

assumed rate of return, or assumed continuous availability of the

source of funds for payment of the interest” differ significantly
                              - 32 -

from the actual facts presented.   Respondent further emphasizes

that a quantitative comparison of values obtained under different

approaches is no basis for deviation.

     As a preliminary matter in our assessment of the parties’

contentions, we reiterate a point made earlier.   Precedent and

logic clearly establish that a private annuity, for purposes of

the tables, may be both unsecured and independent of any

particular corpus.   See Dix v. Commissioner, 

, 798,

800-801 (1966); Estate of Cullison v. Commissioner, T.C. Memo.

1998-216.   Hence, our analysis here will focus on whether the

third of the estate’s alleged reasons for departure from the

tables, the lack of marketability, supports such a deviation.

     A review of the cases addressing attempts to avoid use of

the tables reveals that those permitting departure have almost

invariably, with an exception to be discussed below, required a

factual showing that renders unrealistic and unreasonable the

return or mortality assumptions underlying the tables.   In

general, it has been recognized that expert actuarial testimony

establishing the Commissioner’s tables to be old or outmoded may

be cause for deviation.   See Estate of Christ v. Commissioner,

, 174 (9th Cir. 1973), affg. 

(1970);

Dunigan v. United States, 

, 895-896 (5th Cir. 1970);

Estate of Cullison v. 

.   As specifically

regards return, rights to income from assets shown to be
                               - 33 -

nonincome producing, see Maryland Natl. Bank v. United States,

, 1081 (4th Cir. 1979); Berzon v. 

at 531-532; Stark v. United States, 

, 132-133

(8th Cir. 1973), or to be subject to depletion prior to

expiration of the term interest, see Froh v. 

at 5, have been held properly valued apart from the tables.      In

contrast, where known facts failed to establish a basis for

concluding that a previous average rate of return would remain

constant into the future, even a marked difference between past

experience and the prescribed rate has not justified an alternate

methodology.   See Vernon v. 

at 490; Estate of

Christ v. Commissioner, 

.    With respect to

mortality, a known fatal condition leading to imminent death has

been ruled to make use of actuarial tables unreasonable.   See

Estate of Butler v. Commissioner, 

, 919-920 (1952);

Estate of Jennings v. Commissioner, 

, 327-328 (1948);

cf. Bank of Calif. v. United 

at 760; Continental

Ill. Natl. Bank & Trust Co. v. United 

at 593-594.

     At the same time, the courts repeatedly have emphasized the

limited nature of these exceptions and the important role played

by the actuarial tables.    See Bank of Calif. v. United 

at 760; Continental Ill. Natl. Bank & Trust Co. v. United

at 593-594.    In the words of the Court of Appeals

for the Ninth Circuit: “actuarial tables provide a needed degree
                              - 34 -

of certainty and administrative convenience in ascertaining

property values and prove accurate when applied in large numbers

of cases, although discrepancies inevitably arise in individual

cases.”   Bank of Calif. v. United 

at 760.   There is

also, in these cases specifically dealing with the standard for

departure, once again a salient absence of any consideration

regarding what rights the payee may have had to liquidate or

dispose of his or her interest.   In fact, the income right at

issue in Estate of Christ v. Commissioner, 

, 542,

which was held subject to valuation under the tables of section

20.2031-7, Estate Tax Regs., was expressly made nonassignable.

The trust instrument provided:

           The beneficiaries of this trust are hereby
     restrained from selling, transferring, anticipating,
     assigning, hypothecating or otherwise disposing of
     their respective interests in the corpus of the said
     trust, or any part thereof, and of their respective
     interests in the income to be derived and to accrue
     therefrom, or any part thereof, at any time before the
     said corpus or the said income shall come into their
     possession under the terms of said trust * * * [Id. at
     499.]

Yet no deviation was permitted.   See 

542.

     Moreover, it is noteworthy that other forms of annuity which

lack liquidity are expressly required by statutes and regulations

to be valued under the Commissioner’s prescribed tables.   For

instance, in the context of a grantor-retained annuity trust,

section 2702(a)(2)(B) mandates valuation of a qualified retained

annuity interest under section 7520.   Nonetheless, in order to
                                - 35 -

create such a qualified interest, the trust instrument must

prohibit both (1) distributions from the trust to or for the

benefit of any person other than the annuitant during the term of

the interest and (2) commutation (prepayment) of the annuity

interest.   See sec. 25.2702-3(d)(2), (4), Gift Tax Regs.

Similarly, the present value of the annuity portion of a

charitable remainder annuity trust is computed under section

20.2031-7(d), Estate Tax Regs., notwithstanding that the trust

may not be altered to provide for payment to or for the benefit

of any noncharitable beneficiary other than the person or persons

named in the governing instrument.       See sec. 1.664-2(a)(1)(i),

(a)(4), (c), Income Tax Regs.    Hence, we find statutory and

regulatory support for the premise that lack of liquidity or

marketability is not taken into account in determining whether

tabular valuation is appropriate.

     Given the foregoing precedent, we are convinced that there

exists no authority for the anomalous position taken by the U.S.

District Court for the Eastern District of California in Estate

of Shackleford v. United States, 84 AFTR 2d 99-5902, 99-2 USTC

par. 60,356 (E.D. Cal. 1999).    Estate of Shackleford v. United

, involved facts nearly identical to those now

before this Court.   Mr. Shackleford won a California lottery

prize to be paid in 20 nonassignable annual installments and then

died after receiving only three payments.       See 

to
                              - 36 -

99-5903.   On the issue of valuing these payments for estate tax

purposes, the District Court accepted with little explanation

that the prize was an annuity within the purview of section 7520.

See 

to 99-5906.   However, the court concluded that

departure from the actuarial tables was warranted because failure

“to take into account the absolute lack of liquidity of the

prize” rendered tabular valuation unreasonable.   

     We cannot agree with the District Court for several reasons.

First, as indicated above, case law offers no support for

considering marketability in valuing annuities.   (The only other

case cited by the estate for this proposition, Bamberg, Executor

under the Will of McGrath v. Commissioner of Revenue, No. 132709,

(Mass. App. Tax. Bd. Sept. 20, 1985), is a State

tax case that affords no cogent analysis of the issue for Federal

tax purposes.)

     Second, the enactment of a statutory mandate in section 7520

reflects a strong policy in favor of standardized actuarial

valuation of these interests which would be largely vitiated by

the estate’s advocated approach.   A necessity to probe in each

instance the nuances of a payee’s contractual rights, when those

rights neither alter or jeopardize the essential entitlement to a

stream of fixed payments, would unjustifiably weaken the law.
                              - 37 -

     Third, as a practical matter, we observe that an annuity,

the value of which consists solely in a promised stream of fixed

payments, is distinct in nature from those interests to which a

marketability discount is typically applied.    As the estate

acknowledges, discounts for lack of marketability are most

prevalent in valuation of closely held stock or fractional

interests in property.   Such is appropriate in that capital

appreciation, which can usually be accessed only through

disposition, is a significant component of value.    The value of

an annuity, in contrast, exists solely in the anticipated

payments, and inability to prematurely liquidate those

installments does not lessen the value of an enforceable right to

$X annually for X number of years.

     In connection with the foregoing, we further note that any

attempted comparison to the “small market of those willing to

purchase unassignable lottery winnings”, which the parties

stipulated to exist, would be inapposite.   Decedent died owning

an enforceable right to a series of payments.    Yet any purchaser

buys only an unenforceable right and so is necessarily valuing a

different species of interest.   What a LOTTO prize might be worth

to such a speculator hardly reflects its value in the hands of a

legitimate owner.   Hence, because there is no market for the

precise interest held by decedent, the need for a standardized

approach becomes even more apparent.
                              - 38 -

     Lastly, we comment that section 20.7520-3(b)(1)(ii), Estate

Tax Regs., cited by the estate, does not cause us to reach a

different conclusion.   Section 20.7520-3(b)(1)(ii), Estate Tax

Regs., deals with an exception to section 7520 for certain

restricted beneficial interests and states:

     A restricted beneficial interest is an annuity, income,
     remainder, or reversionary interest that is subject to
     any contingency, power, or other restriction, whether
     the restriction is provided for by the terms of the
     trust, will, or other governing instrument or is caused
     by other circumstances. In general, a standard section
     7520 annuity, income, or remainder factor may not be
     used to value a restricted beneficial interest. * * *

The regulation then goes on to cite two examples where its

provisions would be applicable, one of which involves a power to

invade corpus that could diminish the income interest to be

valued and the other of which addresses an annuity payment

measured by the life of one with a terminal illness.   See id.;

sec. 20.7520-3(b)(2)(v), Example (4), Estate Tax Regs.; sec.

20.7520-3(b)(4), Example (1), Estate Tax Regs.

     In light of the examples given and the previously quoted

preamble of T.D. 8630, 1996-1 C.B. 339, we are satisfied that the

intent of this provision was to formalize the existing case law

regarding the validity of the tabular assumptions in situations

where facts show a clear risk that the payee will not receive the

anticipated return.   Thus, a restriction within the meaning of

the regulation is one which jeopardizes receipt of the payment

stream, not one which merely impacts on the ability of the payee
                              - 39 -

to dispose of his or her right thereto.   We cannot realistically

accede to the view that an agreement for fixed payments backed by

the full faith and credit of a State government raises any such

concerns.   Accordingly, even if applicable, this regulation would

not aid the estate.

     We therefore hold that lottery payment installments at issue

here must be valued through application of the actuarial tables

prescribed under section 7520.   Additional arguments by the

parties, to the extent not specifically addressed herein, have

been carefully considered but found unconvincing, irrelevant, or

moot.

     To reflect the foregoing, and to take into account any

further allowable deduction under section 2053,



                                          Decision will be entered

                                    under Rule 155.