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With this longstanding judicial precedent in mind, we are
not persuaded by Decedent's estate's position in the instant
case. We conclude that the congressional mandate embodied in
section 2036(a) requires that the property in question be
included in Decedent's gross estate. As observed by the Supreme
Court in construing a predecessor of section 2036(a) in the
context of transfers in trust:
an estate tax cannot be avoided by any trust transfer
except by a bona fide transfer in which the settlor,
absolutely, unequivocally, irrevocably, and without
possible reservations, parts with all of his title and
all of his possession and all of his enjoyment of the
transferred property. * * * [Commissioner v. Estate of
Church, 335 U.S. 632, 645 (1949).]
The Court has also stated that section 2036(a):
taxes not merely those interests which are deemed to
pass at death according to refined technicalities of
the law of property. It also taxes inter vivos
transfers that are too much akin to testamentary
dispositions not to be subjected to the same excise.
By bringing into the gross estate at his death that
which the settlor gave contingently upon it, this Court
fastened on the vital factor. It refused to
subordinate the plain purposes of a modern fiscal
measure to the wholly unrelated origins of the
recondite learning of ancient property law. * * *
[Helvering v. Hallock, 309 U.S. 106, 112 (1940).]
Accordingly, the amount of consideration which is necessary
to remove property from a gross estate under the bona fide sale
exception of section 2036(a) is not determined merely by
reference to the common law definition of contractual
consideration, Merrill v. Fahs, 324 U.S. 308 (1945);
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