Estate of Sarah H. Newman, Deceased, Mark M. Newman, Co-Executor and Minna N. Nathanson, Co-Executor - Page 7

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          at the time of her death.  Estate of Gagliardi v. Commissioner,             
          89 T.C. 1207, 1210 (1987).  Section 20.2031-5, Estate Tax Regs.,            
          provides that "The amount of cash belonging to the decedent at              
          the date of his death, whether in his possession or in the                  
          possession of another, or deposited with a bank, is included in             
          the decedent's gross estate."  If the checks in question                    
          constitute completed gifts during decedent's lifetime, the funds            
          represented by those checks would not be includable in decedent's           
          gross estate.3                                                              
               A gift is not consummated until put beyond the donor's                 
          recall.  Burnet v. Guggenheim, 288 U.S. 280, 286 (1933).  Section           
          25.2511-2(b), Gift Tax Regs., provides in relevant part:                    

                    (b)  As to any property, or part thereof or                       
               interest therein, of which the donor has so parted with                
               dominion and control as to leave in him no power to                    
               change its disposition, whether for his own benefit or                 
               for the benefit of another, the gift is complete.  But                 
               if upon a transfer of property (whether in trust or                    
               otherwise) the donor reserves any power over its                       
               disposition, the gift may be wholly incomplete, or may                 
               be partially complete and partially incomplete,                        
               depending upon all the facts in the particular case.                   
               Accordingly, in every case of a transfer of property                   
               subject to a reserved power, the terms of the power                    
               must be examined and its scope determined.  * * *                      



               3Although sec. 2501 imposes a tax on the transfer of                   
          property by gift, sec. 2503(b) provides that the first $10,000 of           
          gifts made to any person during a year is excluded in computing             
          the total amount of gifts made during that year.  Estate of                 
          Cristofani v. Commissioner, 97 T.C. 74, 78 (1991).  Consequently,           
          a gift of $10,000 or less completed prior to decedent's death is            
          neither included in her gross estate nor taxed as a gift.                   




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