ELIZABETH J. BARTLETT, AS EXECUTRIX OF THE ESTATE OF CHARLES E. GRIMES, DECEASED, PETITIONER-APPELLANT,

v.

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT-APPELLEE

CUMMINGS, Circuit Judge.

Ben Franklin once said that in this world, nothing can be said to be certain but death and taxes. This case calls for a variation on the old adage. Add some unfortunate mistakes by a well-meaning lawyer to the picture and the saying becomes: nothing can be said to be certain but death and higher taxes. Here’s what happened. In April 1989 the Tax Court determined that there was a deficiency in estate taxes due from the Estate of Charles E. Grimes in the amount of $159,054. The decedent lived in Illinois and died testate on December 25, 1980. His spouse Elizabeth J. Grimes (now Elizabeth J. Bartlett) became executrix of his estate.

I. FACTS

Grimes and his wife executed their “Mutual Last Will and Testament” on September 27, 1980. Key paragraphs of that doc ument appear at pages 322-23 of this opinion. After her husband’s death, his widow retained Robert Gammage, the attorney who prepared the will, to aid her in her capacity as executrix. On her estate tax return, the executrix, with Gammage’s assistance, elected the provisions of Section 2032A of the Internal Revenue Code (26 U.S.C. § 2032A) with respect to decedent’s farmland.

Section 2032A permits a taxpayer to declare the value of a family farm or other closely-held business according to its actual use value instead of its fair market value. The provision’s rationale is to lessen the tax burden on the heirs to the estate, so that they may continue to operate the eligible property. Without Section 2032A, the estate would have to declare the value of the property according to its fair market value, the usual benchmark for placing the value on property. Since the fair market value can be expected to far exceed the use value, the payment of estate taxes might well place the executrix in a bind, forcing the heir to sell the property to pay the tax. See, e.g., Prussner v. United States, 896 F. 2d 218, 220 (7th Cir.1990) (en banc)) Schuneman v. United States, 783 F. 2d 694, 697 (7th Cir.1986).

Section 2032A is a highly articulated provision, and taxpayers electing to have farmland valued according to its actual use must satisfy a plethora of conditions.* Sections 2032A(a)(l)(B) and (d) and the implementing Treasury Regulations (Treas. Regs, on Estate Tax, § 20.2032A-8(a)(3)) set forth the precise filing requirements necessary to trigger the estate tax treatment under Section 2032A. Taxpayer satisfied the first of these. On the estate tax return, an “X” was placed next to question 11 on page 2- — “Do you elect the special valuation * * * ?” Although taxpayer answered Question 11 in the affirmative, the estate failed to heed the remaining requirement of Question 11, printed on the tax return. Question 11 additionally required the taxpayer to;

attach to this return an agreement to express consent to personal liability under section 2032A(c) in the event of certain early dispositions of the property or early cessation of the qualified use. The agreement must be executed by all parties receiving any interest in the property being valued based on its qualified use.

The executrix and the four Grimes children signed an “Agreement to Special Valuation Under Section 2032A,” known as a “recapture agreement,” on September 23, 1981 — two days before the due date of the estate tax return. In signing the recapture agreement, the executrix and the decedent’s four children agree that the property will continue to be put to its qualified use, and, moreover, if the property is either sold to a non-family member or put to a non-qualifying use, then the estate will owe the difference between taxes paid under Section 2032A and the amount that the estate would have owed had the property been taxed at its fair market value. See Committee on Ways and Means, Estate and Gift Tax Reform Act of 1976, H.R.Rep. No. 94-1380, 94th Cong., 2d Sess. 25-27 (1976), U.S.Code Cong. & Admin.News 1976, p. 2897.

Unfortunately, Gammage, the estate’s lawyer, did not give the recapture agreement to Grimes’s widow when she filed the timely return through United States Mail. On October 7, 1981, the Internal Revenue Service received an October⁵, 1981, letter from Gammage stating that the recapture agreement was “inadvertently omitted from [the] transmittal of the original return in this estate.” He enclosed the previously signed recapture agreement with his letter. On June 22, 1984, the Commissioner of Internal Revenue asserted a deficiency in federal estate tax in part because the estate had failed to timely submit the recapture agreement.

The Commissioner’s other grounds for asserting the estate’s additional tax liability arose from the executrix’s claim to a marital deduction of $143,866.87 for personal property, consisting in part of stocks and bonds of $14,588.50, mortgage, notes and cash of $79,481.97, and $19,408.76 in miscellaneous property, totaling $113,-479.23. As support for this deduction, taxpayer invoked Section 2056 of the Code (26 U.S.C. § 2056).

Congress enacted this provision to achieve the uniformity of federal estate tax between states with community property laws and those without them. Jackson v. United States, 376 U.S. 503, 505-506 & n. 4, 84 S.Ct. 869, 870-871 & n. 4, 11 L.Ed.2d 871 (construing Section 812(e) of the Internal Revenue Code of 1939 (26 U.S.C. § 812(e) (1952 Ed.)), the predecessor to Section 2056).

Section 2056 saves the surviving spouse from having to pay estate taxes on the property he or she inherits if that property would otherwise be included in determining the taxable portion of the gross estate.

However, Section 2056 prevents the surviving spouse from benefit-ting from the marital deduction when the property interest at issue is terminable. Put another way, if there is a chance that the acquired property interest will fail due to the occurrence of some event or contingency, the surviving spouse may not deduct the value of the property. This limitation makes sense. If the surviving spouse’s interest in the property terminates prior to or at the time of his or her death, then the property interest escapes taxation twice. Because the Commissioner viewed the claimed deduction as a life estate that terminated upon the surviving spouse’s death, he disallowed the amount on the ground that it was a non-qualifying terminable interest-under the will.

On December 20, 1988, the Tax Court filed a Memorandum Opinion (56 T.C.M. (CCH) 890) holding that the estate did not make a valid election under Section 2032A because it failed to timely submit the recapture agreement with the estate tax return. After the initial briefs' in this case were filed, this Court decided Prussner v. United States, 896 F. 2d 218 (7th Cir.1990) (en banc), where we construed the recapture agreement in a Section 2032A election. In Prussner, we decided , that the failure to file the recapture agreement “with the return” did not satisfy an unequivocal requirement of Section 2032A and that the failure by a taxpayer’s lawyer to comply meant that taxpayer had not substantially complied with the regulation. Id. at 224-225 (emphasis in original).

With respect to taxpayer’s claimed marital deduction, the Tax Court held that under Illinois law the will constituted a joint and mutual will which limited the executrix’s ability to dispose of the property, thereby imposing terminable conditions on the interest. The Tax Court construed the will as providing the widow with a life estate in the personal property with remainder to the Grimes children. Illinois law mandated this construction of the will.

Therefore, as to both aspects of the Tax Court’s judgment, we affirm, because the deficiency in this estate tax of $159,054 was warranted by Pruss-ner and by Illinois law.

II. ANALYSIS

A. Untimely recapture agreement

As explained above and in this Court’s Prussner decision, while property is generally valued for federal estate tax purposes on the basis of its fair market value, Congress enacted Section 2032A of the Internal Revenue Code in 1976 to provide a limited exception to this rule with respect to the valuation of certain family farms and other closely-held businesses. In the absence of Section 2032A, inherited farmland would be valued at its “highest and best use,” often requiring the heirs of family farms to sell the farms in order to pay the tax. E.g., Whalen v. United States, 826 F. 2d 668, 669 (7th Cir.1987); see also H.R.Rep. No. 94-1380, 94th Cong., 2d Sess. at 21-22, U.S.Code Cong. & Admin.News 1976, p. 3376 (noting the desirability of encouraging “continued use of property for farming and other small business purposes”).

Section 2032A permits taxpayers to declare the value of their property for estate tax purposes on the basis of its actual use, thus enabling them to continue putting the property to use for the same purpose.

Section 2032A(a) requires the executrix to indicate on the estate tax return the taxpayer’s intention to claim the deduction and to file the recapture agreement. The added requirement of the recapture agreement provides a written guarantee to the Commissioner that all of the parties having an interest in the property — here the other heirs to the estate — agree that the estate may be put to the qualified use. Only by continuing to put the property to use as a farm or other closely-held business may the executrix deduct the use value rather than the fair market value of the property. Prussner, 896 F. 2d at 221. Moreover, the recapture agreement manifests the signatories’ commitment that the estate will pay the difference if the property is sold or is no longer put to its qualified use.

In turn, Section 2032A(d) requires that the election shall be made not later than the time prescribed by Section 6075(a) for filing estate tax returns, namely, within nine months after the date of the decedent’s death. The applicable Treasury Regulation requires that the notice of election and the recapture agreement be attached “to a timely filed estate tax return.” 26 C.F.R. § 20.2032A-8(a)(3). Unless the election, including the attached recapture agreement, is “timely made, special use valuation is not available to the estate.” Id.

Here Grimes’s widow, the estate’s executrix, did not attach the recapture, agreement to the estate tax return, as required by Prussner and the applicable regulation, when the return was filed on September 24, 1981. In fact, her attorney did not forward the agreement to the Internal Revenue Service until 10 days after the due date for filing the return.

Therefore the executrix did not comply with either Section 2032A(d)(l) of the Internal Revenue Code or with the Treasury Regulation giving effect to the filing requirement. 26 C.F.R. § 20.2032A-8(a)(3).

Courts have repeatedly upheld the validity of this Estate Tax Regulation. Prussner, 896 F. 2d at 225; McDonald v. Commissioner, 853 F. 2d 1494, 1496 n. 3 (8th Cir.1988) (recognizing that the Regulation was drafted pursuant to direct statutory authority), certiorari denied sub nom. Cornelius v. Commissioner, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155; and Estate of Gunland v. Commissioner, 88 T.C. 1453, 1456-1458 (1987) (noting that in the absence of a recapture agreement, it is unclear whether the heirs are on notice of either the recapture provisions or of the possibility that they will be subject to recapture tax in the future), superseded by statute as stated in Estate of Johnson v. Commissioner, 89 T.C. 127 (1987).

The filing of the recapture agreement is an integral part of a valid Section 2032A election. In the Conference Report explaining the legislative purpose behind Section 2032A, the House Ways and Means Committee states: “one of the requirements for making a valid election is the filing with the estate tax return [of] a written [recapture] agreement * * *.” H.R.Rep. No. 94-1380, 94th Cong., 2d Sess. at 27, U.S.Code Cong. & Admin.News 1976, p. 3381.

As the Eighth Circuit has put it, “[t]o ensure payment [of the recaptured tax] all parties with an interest in the property must expressly consent to personal liability for the recaptured tax in a binding agreement attached to a timely filed estate tax return.” McDonald, 853 F. 2d at 1496 (emphasis supplied).

If, as here, an executor fails to attach a recapture agreement to an original timely-filed estate tax return, the property will be valued for tax purposes at its highest and best use. Estate of Gunland, 88 T.C. at 1460. In Prussner we agreed with the Eighth Circuit, holding that the statute and regulation require that the Section 2032A election be made by attaching the recapture agreement to a timely-filed estate tax return. 896 F. 2d at 223. Unfortunately that was not done with respect to the tax return filed with the Commissioner by the executrix of the Grimes estate.

1. The substantial compliance doctrine

Prussner also guides our analysis of the claim by the executrix that, despite the failure to timely file the recapture agreement, the estate in all other respects substantially complied with the statute and regulation. Executrix asserts that its omission is covered by the substantial compliance amendment contained in the 1984 enactment of Section 2032A(d)(3).

However, Prussner held that a recapture agreement that is in one respect or another defective is inexcusable and fails to substantially comply with the regulation. Id.; McDonald, 853 F. 2d at 1497 (a recapture agreement filed along with the estate's tax return but containing “neither the name nor the signature of anyone with an interest in the property” did not substantially comply with 26 C.F.R. § 20.2032A-8). The Eighth Circuit subsequently reaffirmed McDonald in Foss v. United States, 865 F. 2d 178, 181 (1989), rejecting an estate’s bid for special use valuation where neither the notice of election nor the recapture agreement was attached to the estate tax return. Accord Estate of Merwin v. Commissioner, 95 T.C. 168 (1990).

It is no excuse that the estate’s lawyer apparently overlooked the requirement that the recapture agreement must be filed with the estate tax return. In the context of a failure to timely elect favorable tax treatment under another provision of the Code, this Court recognized that “[t]he taxpayer’s own ignorance cannot excuse the failure to make a timely election, regardless of whether he or she is ignorant only of the election opportunity or the tax consequences [of the provision] itself.” Whyte v. Commissioner, 852 F. 2d 306, 311 (7th Cir.1988); Illinois Valley Paving Co. v. Commissioner, 687 F. 2d 1043, 1046 (7th Cir.1982) (a court cannot refuse to enforce provisions of the Code “on the ground that they were incomprehensible to or overlooked by the taxpayer”).

Here Congress restricted the opportunity to prove a defective election to instances where the original documents submitted with the return substantially comply with the regulations.

Furthermore, Congress determined that government revenue would best be protected by preventing the executor from extending the substantial compliance doctrine to actions taken after the time that the return is filed when timely filing is mandated by the Regulation. As the Tax Court determined in Estate of Gunland, 88 T.C. at 1459, the statute and regulation expressly provide the manner in which the Section 2032A election is to be made, making the timely-filed recapture agreement “an integral part of the statute scheme in that it subjects all qualified heirs to potential recapture tax liability.” Because the provisions are explicit, the substantial compliance doctrine is inapplicable and insufficient to overcome the mistake. Id. Accord Estate of Strickland v. Commissioner, 92 T.C. 16, 27 (1989).

The substantial compliance doctrine as applied to cases involving the election of Section 2032A(d)(3) is limited to correcting minor errors in a recapture agreement and notice of election filed with a timely estate tax return. A taxpayer may claim substantial compliance with Section 2032A “only where the notice of election and the written [recapture] agreement are included with the timely filed estate tax return.” Voorhis v. United States, 88-1 USTC H 13,749 at 84,097, 1987 WL 49370 (C.D.Ill.1987).

As the legislative history of Section 2032A demonstrates, Congress intended that “the notice of election and the recapture agreement must be included with the estate tax return, as filed. * * * ” H.R. Conf.Rep. 98-861, 98th Cong., 2d Sess. 1241 (1984), U.S.Code Cong. & Admin.News 1984, pp. 697, 1929. As explained above, “[o]ne of the requirements for making a valid election is the filing with the estate tax return [of] a written [recapture] agreement * * H.R.Rep. 94-1380, 94th Cong., 2d Sess. at 27 (emphasis supplied), U.S.Code Cong. & Admin.News 1976, p. 3381.

2. Application of Section 1421

In Prussner, 896 F. 2d 218 (7th Cir. 1990), a unanimous Court, sitting en banc, rejected all the arguments made by the Grimes estate as to the proper interpretation of Section 2032A and the accompanying Treasury Regulation. However, Prussner concluded that the executrix in that case could claim relief under Section 1421 of the Tax Reform Act of 1986. Under Section 1421, the failure to file a recapture agreement with an estate tax return is not fatal where the estate tax return filed by an executor contains all the information with respect to the election that the return requires. Id. at 225.

But Section 1421 is of no avail to' the Grimes estate since the executrix never relied on that provision as a ground for validating its defective election in either the Tax Court or this Court. We have repeatedly held that issues and arguments not raised before the lower court cannot be raised for the first time on appeal. E.g., Textile Banking Co., Inc. v. Rentschler, 657 F. 2d 844, 853 (7th Cir.1981). This axiom applies with equal force in a case in which a taxpayer fails to rely on a particular Section of the Tax Reform Act in the trial court. It is simply too late for the estate to invoke an entirely new Section of the Act. Helvering v. Wood, 309 U.S. 344, 348-349, 60 S.Ct. 551, 553, 84 L.Ed.