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estate includes the value of all property to the extent that the
decedent had an interest in it at the time of her death. Sec.
2033. "The amount of cash belonging to the decedent at the date
of his death, whether in his possession or in the possession of
another, or deposited with a bank, is included in the decedent's
gross estate." Sec. 20.2031-5, Estate Tax Regs. State law
determines the extent of a decedent's interest in property.
Burnet v. Harmel, 287 U.S. 103, 110 (1932).
Petitioner contends that decedent intended to make $10,000
gifts to family members and that the power of attorney authorized
Marsha to make such gifts. We hold that decedent did not intend
to make these transfers and that Marsha had no authority to make
them.
A. Decedent's Intent To Make Gifts
We must determine, under New York law, whether the sixteen
$10,000 checks that Marsha wrote to various family members were
valid and completed gifts. United States v. Rodgers, et al, 461
U.S. 677, 683 (1982); Muserlian v. Commissioner, 932 F.2d 109,
113 (2d Cir. 1991), affg. T.C. Memo. 1989-493. According to the
New York Court of Appeals, New York's highest court, a gift is
valid only if donative intent, delivery, and acceptance are
established. See, e.g., Gruen v. Gruen, 496 N.E. 2d 869, 872
(1986). "[T]he proponent of a gift has the burden of proving
each of these elements by clear and convincing evidence." Id.
[citations omitted].
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