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the full value of that property is includable in the gross
estate, and the marital deduction equals one-third. If we find
that the Bard property was community property, then only one-half
of the value of that property is includable in the gross estate,
and the marital deduction equals that one-half. Petitioner bears
the burden of proof. Rule 142(a).
III. Analysis
A. Introduction
The parties agree that decedent’s ownership of the Bard
property can, at least in major part, be traced back to
decedent’s ownership of an interest in the New Mexico ranch.3 We
must decide whether the New Mexico ranch was community property
or separate property in decedent's hands at the time he acquired
his interest therein. If decedent acquired his interest in the
New Mexico ranch as separate property, we must determine whether
3 On brief, petitioner states: “The evidence shows that the
Bard Ranch property was acquired in exchange for Dunlap property
in Arizona which was exchanged for the * * * [New Mexico] Ranch
property in New Mexico.” Petitioner ignores the fact that 125
acres of the Bard property was acquired by purchase. Petitioner
has neither averred nor proposed as a finding of fact that any of
the purchase price of that 125 acres was paid with community
funds. Indeed, we have found that a substantial portion of the
purchase price was paid by decedent’s mother. That, of course,
suggests a gift to decedent. We assume from petitioner’s failure
to plead or propose facts consistent with decedent’s purchase of
his interest in the property with community funds that petitioner
relies solely on the argument that, although not initially
community property, decedent’s interest in the 125 acre tract
subsequently became community property. If petitioner intends
any other argument, she has failed either to propose a factual
predicate therefor or to state such argument. We shall consider
only the argument petitioner made.
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