Theodore S. Prokopov and Georgine O. Prokopov - Page 10

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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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