A divided panel of the Commonwealth Court rejected the position
of the Department of Revenue and held that a transfer to an
irrevocable trust qualified as a transfer to a living trust
excluded from realty transfer tax. Miller v. Commonwealth,
No. 757 F.R. 2007 (Pa. Commw. Apr. 8, 2010). A living trust is
a qualifying trust intended as a will substitute. 72 P.S.
§8101-C. A transfer to a qualifying living trust is excluded
from tax. 72 P.S. §8102-C.3(8.1). The Department argued that
only a revocable trust can qualify as a living trust. The court
held otherwise, relying on §7.1(a) of the "Restatement
(Third) of Property (2003), which states that a will substitute is
an arrangement established during a donor's life under which
the right to possession or enjoyment of the property shifts outside
of probate to the donee at the donor's death and substantial
lifetime rights of possession or enjoyment are retained by the
donor. Reviewing the terms of the trust, the court held
