New York State Department of Taxation and Finance
Office of Tax Policy Analysis
Technical Services Division
July 31, 2001
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
PETITION NO. M000526A
On May 26, 2000, a Petition for Advisory Opinion was received from Lawrence A.
De Angelus, Higgins, Roberts, Beyerl & Coan, P.C., 1430 Balltown Road, Schenectady, New York
The issues raised by Petitioner, Lawrence A. De Angelus, are:
1. Whether real property located outside of New York, which is part of the corpus of an inter
vivos revocable trust, is considered to be “real property” that is excluded, pursuant to section
956(a) of the Tax Law, from a New York domiciliary Grantor-Decedent’s (“Decedent”)
New York gross estate computed under section 954(a) of the Tax Law, or is considered an
intangible interest in a trust that is “intangible personal property” that is included in the
Decedent’s New York gross estate.
2. What is the answer to Issue 1, if the real property is held in an irrevocable trust created
by the Decedent which gives to Decedent a general power of appointment?
3. What is the answer to Issue 1, if the real property is held in an irrevocable trust created
by a third party which gives to Decedent a general power of appointment?
Petitioner submits the following facts as the basis for this Advisory Opinion.
Assume the Decedent died a resident of New York State prior to February 1, 2000. During
his life he had created a revocable trust, to be administered under the laws of New York State. The
corpus of this trust included a parcel of real property located outside of New York State. Decedent
died without having revoked the trust. Under sections 2036(a)(2) and 2038 of the Internal Revenue
Code (“IRC”), the entire value of the trust corpus (including the out-of-state realty) is included in
the Decedent’s federal gross estate.
Section 954(a) of Article 26 of the Tax Law provides that the New York gross estate o