Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 24

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               On brief, petitioner contends that the gross estate is not             
          increased by the amount of its section 1341(a) relief, because              
          decedent's right to such relief did not exist at the time of her            
          death on November 16, 1990.  Petitioner maintains that it was not           
          entitled to any section 1341(a) relief until it repaid Exxon                
          pursuant to the terms of the February 10, 1992, settlement                  
          agreement.  This agreement was not entered into until almost 15             
          months after decedent's death.  Respondent, on the other hand,              
          argues that petitioner's section 1341(a) relief necessarily                 
          augments the gross estate.  Neither party has cited, nor have we            
          found, any case law squarely on point.                                      
               In support of his position, respondent relies on the                   
          decision of the District Court for the Eastern District of                  
          Michigan in Estate of Good v. United States, 208 F. Supp. 521               
          (E.D. Mich. 1962).  In Estate of Good, the decedent had been                
          overpaid by his employer in salary and expense reimbursements.              
          These amounts were reported by decedent on his income tax returns           
          for the years received.  The employer notified the decedent that            
          he would be liable for repayment and filed a claim against the              
          decedent's estate when the decedent died prior to repayment.                

               15(...continued)                                                       
          1341(a) relief is limited to the amount paid to settle Exxon's              
          claim against decedent individually; petitioner is not entitled             
          to sec. 1341(a) relief for amounts paid in satisfaction of                  
          Exxon's claims against Jessamine and Frankie.  The parties also             
          appear to agree that a credit pursuant to sec. 1341(a)(5) would             
          provide petitioner a greater benefit than a deduction under sec.            
          1341(a)(4).                                                                 




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