Buder v. U.S., No. 05-2145.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Fagg
• Citation: 436 F.3d 936
• Parties: Estate of Kathryn M. BUDER, deceased, by and through, as personal and representative of the Estate of Kathryn M. Buder, deceased, as trustee of the G.A. Buder, Jr. Residuary Trust, and as beneficiary of the G.A. Buder, Jr. Residuary Trust — G.A. Buder, III — Theodore A. Buder — Marshall O. Buder; G.A. Buder, Jr. Residuary Trust by and through, as trustee of the G.A. Buder, Jr. Residuary Trust, and as beneficiary of the G.A. Buder, Jr. Residuary Trust — G. A. Buder, III — Theodore A. Buder — Marshall O. Buder; G.A. Buder, III, Theodore A. Buder, and Marshall O. Buder as the remaining beneficiaries of the G.A. Buder, Jr. Residuary Trust; Theodore A. Buder, as a remaining beneficiary of the G.A. Buder, Jr. Residuary Trust; Marshall O. Buder, as a remaining beneficiary of the G.A. Buder, Jr. Residuary Trust, Appellants/Cross-Appellees, v. UNITED STATES of America, Appellee/ Cross-Appellant.
• Docket Number: No. 05-2147.,No. 05-2145.
• Decision Date: 07 February 2006

436 F.3d 936 Estate of Kathryn M. BUDER, deceased, by and through, as personal and representative of the Estate of Kathryn M. Buder, deceased, as trustee of the G.A. Buder, Jr. Residuary Trust, and as beneficiary of the G.A. Buder, Jr. Residuary Trust — G.A. Buder, III — Theodore A. Buder — Marshall O. Buder; G.A. Buder, Jr. Residuary Trust by and through, as trustee of the G.A. Buder, Jr. Residuary Trust, and as beneficiary of the G.A. Buder, Jr. Residuary Trust — G. A. Buder, III — Theodore A. Buder — Marshall O. Buder; G.A. Buder, III, Theodore A. Buder, and Marshall O. Buder as the remaining beneficiaries of the G.A. Buder, Jr. Residuary Trust; Theodore A. Buder, as a remaining beneficiary of the G.A. Buder, Jr. Residuary Trust; Marshall O. Buder, as a remaining beneficiary of the G.A. Buder, Jr. Residuary Trust, Appellants/Cross-Appellees,
v.
UNITED STATES of America, Appellee/ Cross-Appellant. No. 05-2145. No. 05-2147. United States Court of Appeals, Eighth Circuit. Submitted: January 9, 2006. Filed: February 7, 2006.

Page 937

Thomas B. Weaver, argued, St. Louis, MO (John R. Barsanti, Jr., Paul E. Kovacs, and Jeffery T. McPherson, on the brief), for appellants/cross-appellees.

Steven W. Parks, argued, Tax Division, Dept. of Justice, Washington, D.C. (Richard Farber, on the brief), for appellee/cross-appellant.

Before MURPHY, FAGG, and SMITH, Circuit Judges.

FAGG, Circuit Judge.

The facts are undisputed and were fully recited by the district court in this case. Estate of Kathryn M. Buder v. United States, 372 F.Supp.2d 1145, 1146-48 (E.D.Mo.2005). We give an abbreviated version here. When G.A. Buder, Jr. died in 1984, his will created a residuary trust for the benefit of his wife and children. His estate treated the residuary trust as qualified terminable interest property (QTIP) and claimed a marital deduction for the trust's value. During litigation over a charitable deduction, the Government raised an affirmative set-off defense that the residuary trust did not qualify as a QTIP. Because the Government did not raise the issue until ten days before trial, however, the court refused to consider the unpleaded defense as untimely. See Buder v. United States, 7 F.3d 1382 (8th Cir.1993) (affirming district court).

When Buder's wife died in 2000, her personal representatives included the residuary trust in her estate's federal estate tax return. Two years later, the estate representatives and Buder's sons filed this action asserting claims for refunds of federal estate tax based on incorrect inclusion of the trust on...