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such 5 percent in her gross estate, see Estate of Kurz v.
Commissioner, 101 T.C. 44 (1993), affd. 68 F.3d 1027 (7th Cir.
1995), nothing occurred subsequent to that transfer, whether by
the operative instruments identified in this case or by operation
of law, to effect a transfer of the remaining 95 percent of Oak
Den from the trust to Mrs. Ogden's estate. To be sure, Mrs.
Ogden's "special" power of appointment over the trust's corpus
expressly precluded such a transfer, and petitioners' argument to
the contrary is without merit. Similarly, petitioners' argument
that Mrs. Ogden's "special" power of appointment was transformed
into a "general" power of appointment on the date of her death is
also without merit.14
When Mrs. Ogden died, the trust continued to exist and Oak
Den remained as part of its corpus. Accordingly, petitioners'
argument that Oak Den had an adjusted basis of $600,000 on the
date of its sale must be rejected.
Respondent has established that this case contains no
genuine issue as to any material fact and that she is entitled to
14It is interesting to note that petitioners advance
inconsistent arguments in their response to the Court's order.
As previously noted, we decline to address a "double taxation"
issue that petitioners advanced in their response because it was
not raised in their petition. With respect to that issue,
however, petitioners maintain in paragraph 5 of their response,
that Oak Den did not enter Mrs. Ogden's estate. Now, with
respect to Oak Den's basis on the date of its sale to RFSH,
petitioners contend that Oak Den had become part of Mrs. Ogden's
estate.
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