-21-
situation. For estate tax purposes, section 2040(a) does raise a
rebuttable presumption that the decedent furnished the entire
consideration for the jointly held property. For income tax
purposes, however, section 1014(b)(9) allows a step-up in basis
only for property "required to be included" in the decedent's
gross estate. Thus, in the income tax setting, which we have
here, the burden of proof is on the taxpayer, who must prove that
the decedent furnished the consideration for the jointly held
property in order to receive a step-up in basis. Madden v.
Commissioner, 52 T.C. 845 (1969), affd. 440 F.2d 784 (7th Cir.
1971) (taxpayer cannot elect whether or not to include jointly
owned property in an estate by simply failing to meet the burden
of proof in order to receive a step-up in basis for income tax
purposes).
c. Express Repeal of Subsections (c), (d), and (e)
Finally, respondent fails to address the most important
indication of congressional intent concerning the implied repeal
issue. In addition to modifying the definition of "qualified
joint interests" in section 2040(b)(2), the 1981 amendment
expressly repealed subsections (c), (d), and (e), which had been
adopted in 1978. ERTA sec. 403(c)(3), 95 Stat. 302.
Consequently, we are particularly loath to find an implied repeal
of the effective date of subsection (b)(1) given the existence of
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