Saturday, June 24, 2006

Nebraska Supreme Court sends disputed estate tax refund back to county court n re Estate of Eriksen, S-04-966, 271 Neb. 806 Heir of deceased farmer exercised option in the will to purchase the farm and the estate sought special valuation elections 2032A and deductions allowed to estates when the relatives continue to farm the property 2057. The Plaintiff sought those elections and also the entire refund according to 77-2108 apportionment statute. The county court ruled against him. The Nebraska Supreme Court reverses holding that the will did not direct apportionment of taxes and refunds if any. Also the Court must consider the application of 77-2108 after the estate pays its taxes; the IRS denied the 2057 claim as well. "Eriksen next contends that under § 77-2108, he should be allocated the tax savings caused by his elections. But the county court did not decide issues regarding apportionment under § 77-2108. Further, at oral arguments, the parties agreed that the residuary of the estate had not been distributed and informed the court that the § 2057 election has now been denied by the Internal Revenue Service. Until the estate taxes have been finally determined, § 77-2108 cannot be applied. In addition, a determination about apportionment involves a number of issues that could require additional factual findings. The county court did not address apportionment under § 77-2108 and did not make specific factual findings, because it determined that the will controlled instead of the statute. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Accordingly, we do not address the apportionment under § 77-2108 and remand the matter for that determination by the county court when the final amount of federal estate taxes has been determined. Likewise, the county court did not address Eriksen's unjust enrichment arguments, and an application of § 77-2108 could potentially affect those claims. Accordingly, we also do not address unjust enrichment and remand the matter for determination by the county court.

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