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§ 8.8 ASCERTAINABILITYthat the legislative history of the provision established that this retroactivity isapplicable for all purposes. The court of appeals wrote that, in enacting this provision,“Congress took the unusual step of allowing a will to be amended after thetestator’s death for the purpose of eliminating estate taxes that diminishedbequests to charity.” 243 This court decided that “[e]xacting a price from charities inthe form of interest on the eliminated tax is inconsistent with congressional intentto benefit charities.” 244If, by reason of the death of an individual or by termination or distributionof a trust in accordance with its instrument, a reformable interest goes into awholly charitable trust or passes to a person for a charitable purpose by the duedate for filing the estate tax return (including extensions), an estate tax charitablededuction is allowed for the reformable interest as if it had met the generalrequirements 245 on the date of the decedent’s death. 246§ 8.8 ASCERTAINABILITYAnother issue that can operate to defeat an estate tax charitable contributiondeduction is the rule that the value of a charitable interest must be ascertainableas of the death of the decedent, so that it is severable from the noncharitableinterest. This rule is often at issue when there is vague language in the will and/or a substantial amount of discretion is vested in the trustee. The Supreme Courtheld that the standard must be “fixed in fact and capable of being stated in definiteterms of money.” 247 More recently, a federal court of appeals wrote that thecase law on the point “indicate[s] that the test has not been construed to requiremathematical certainty such that the dollar amount which the charitable remaindermanwould receive could be accurately calculated” as of the date of death. 248In one instance, a federal court of appeals upheld an IRS determination thatclaimed federal estate tax charitable contribution deductions were not allowablebecause the personal representatives of the estate had unfettered discretion todivert the amount stated for the charities to noncharitable beneficiaries. 249 Therepresentatives were empowered by the will to make posthumous gifts to variousindividuals who had contributed to the decedent’s well-being or were otherwisehelpful to him. As is typical in these instances, the amount provided for the243 Id. at 575.244 Id.245 IRC § 2055(e)(2).246 IRC § 2055(e)(3)(F). In general, this reformation procedure is designed for a trust (or will) that was improperlycreated (i.e., there was invalid or incorrect documentation) and yet in operation conforms to the charitable remaindertrust requirements; the procedure cannot be used to correct an operational failure of a properly createdtrust. Atkinson Estate v. Commissioner, 115 T.C. 26 (2000), aff’d, 2002-2 U.S.T.C. 60,449 (11th Cir. 2002).The IRS ruled that a split-interest trust did not qualify under IRC § 2055(e)(2), because the income interestbeneficiary invaded the trust. The agency thus denied the estate tax charitable contribution deduction. Nonetheless,a court ruled that the charitable deduction was available under IRC § 2055(e)(3)(F), because the incomebeneficiary died before the estate filed its estate tax return. Harbison v. United States, 2000-2 U.S.T.C.60,389 (N.D. Ga. 2000). The court, however, reversed itself and held that IRC § 2055(e)(3)(F) was inapplicable,in that the income interest beneficiary was permitted by the will to invade the corpus of the trust and exercisedthat right. Harbison v. United States, 2001-1 U.S.T.C. 60,398 (N.D. Ga. 2001).247 Ithaca Trust Co. v. United States, 297 U.S. 151, 154 (1929).248 Wells Fargo Bank v. United States, 1 F.3d 830 (9th Cir. 1993).249 Marine Estate v. Commissioner, 990 F.2d 136 (4th Cir. 1993). 263