Estate of Rose D' Ambrosio, Deceased, Vita D'Ambrosio, Executrix - Page 13

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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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