Estate of Marie S. Hubberd, Deceased, John B. McNamara, Jr., and Clayborne L. Nettleship, Co-Independent Executors - Page 9

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          grounds T.C. Memo. 1989-511 (voidable transfers are includable in           
          the gross estate pursuant to section 2038).  Simply stated, the             
          transferees' enjoyment of the property in question would be                 
          subject, at the date of decedent's death, to revocation or                  
          termination through the exercise of a power by the decedent                 
          within the meaning of section 2038(a)(1).3                                  
               We further reject petitioner's contention that, for purposes           
          of section 2033 or section 2038, the voidable nature of a                   
          transfer is ignored until the transfer is successfully avoided.             
          Petitioner relies upon Longue Vue Found. v. Commissioner, 90 T.C.           
          150 (1988), and Estate of Varrick v. Commissioner, 10 T.C. 318              
          (1948), two cases involving voidable charitable transfers.                  
          However, those cases stand for the narrow proposition that a                
          charitable gift that is voidable by the decedent's heirs, but               
          that is not avoided, "is not regarded as creating a contingency             
          that fails the 'so remote as to be negligible' test of the                  
          regulations under section 2055."  Longue Vue Found. v.                      
          Commissioner, supra at 159.  Because the instant motion concerns            
          the question whether voidable transfers to the natural objects of           
          the decedent's bounty are includable in the gross estate, as                

          3  Consistent with our reasoning that the disputed                          
          transfers, if voidable, would be includable in the gross estate             
          pursuant to sec. 2033 and/or sec. 2038, petitioner's assertion              
          that the disputed transfers are now final because any suit to               
          avoid the disputed transfers would be barred by the statute of              
          limitations is irrelevant.                                                  

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