Estate of Cyril I. Magnin, Deceased, Donald Isaac Magnin, Executor - Page 26

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          estate.12                                                                   
               Where a transfer of property fails to meet the requirements            
          of this exception to section 2036(a) because it was for                     
          insufficient consideration, section 2043(a) provides some relief            
          from potential double taxation.  Estate of Frothingham v.                   
          Commissioner, supra at 216.  Section 2043(a) provides in                    
          pertinent part:                                                             

                    (a) In General.--If any one of the transfers * * *                
               described in sections 2035 to 2038, inclusive, and                     
               section 2041 is made * * * for a consideration in money                
               or money's worth, but is not a bona fide sale for an                   
               adequate and full consideration in money or money's                    
               worth, there shall be included in the gross estate only                
               the excess of the fair market value at the time of                     
               death of the property otherwise to be included on                      
               account of such transaction, over the value of the                     
               consideration received therefor by the decedent.                       

          Thus, under section 2043(a), the consideration received is to be            
          valued at the time of receipt by the decedent (i.e., at the time            

          12Even if we were to hold that sec. 2036(a) requires receipt                
          of adequate and full consideration for only the remainder                   
          interest, we would find that petitioner has not met its burden of           
          proving that the value of the interest in Joseph's stock that               
          Cyril received equaled the value of the remainder interest                  
          transferred.  We conclude, infra, that the value of the interest            
          received by Cyril is $43,878.  The value of the remainder                   
          interest transferred by Cyril is $42,000 according to petitioner            
          and $122,997.64 under respondent's calculations.  These values              
          were determined after the parties made certain posttrial                    
          adjustments to their expert reports.  Although we need not                  
          determine the precise value of the remainder interest transferred           
          by Cyril, we conclude that it was more than $43,878.  This                  
          conclusion is based on the evidence, including the expert                   
          witnesses' opinions and the values placed on JM and Specialty               
          stock in gift and estate tax returns filed by Cyril and Joseph              
          between 1948 and 1953.                                                      




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