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The constitutionality of the inclusion of the full value of
a joint tenancy in decedent's gross estate has been addressed by
the Supreme Court. In holding that the full value of a joint
tenancy and a tenancy in the entirety may constitutionally be
included in decedent's gross estate, the Supreme Court said:
The question * * * is, not whether there has been, in
the strict sense of that word, a "transfer" of the property
by the death of the decedent, or a receipt of it by right of
succession, but whether the death has brought into being or
ripened for the survivor, property rights of such character
as to make appropriate the imposition of a tax upon that
result (which Congress may call a transfer tax, a death duty
or anything else it sees fit), to be measured, in whole or
in part, by the value of such rights.
* * * * * * *
At * * * [the joint tenant's] death, however, and because of
it, * * * [the survivor], for the first time, became
entitled to exclusive possession, use and enjoyment; she
ceased to hold the property subject to qualifications
imposed by the law * * *. Thus the death of one of the
parties to the tenancy became the "generating source" of
important and definite accession to the property rights of
the other.
12(...continued)
property has been acquired by gift, bequest, devise, or
inheritance, as a tenancy in the entirety by the decedent
and spouse, or where so acquired by the decedent and any
other person as joint tenants and their interests are not
otherwise specified or fixed by law, then to the extent of
one-half of the value thereof; * * * [Emphasis added to show
the added language by the Revenue Act of 1921]
The purpose of the added language was to "remove uncertainties in
the existing law relating to the interests held jointly or as
tenants in the entirety." S. Rept. 275, 67th Cong., 1st Sess.
(1921), 1939-1 C.B. (Part 2) 181, 198.
In 1924, the provision was renumbered sec. 302(e), and it
was "reworded to secure greater clarity." S. Rept. 398, 68th
Cong., 1st Sess. (1924), 1939-1 C.B. (Part 2) 266, 290. In the
1939 Code, the provision became sec. 811(e)(1). Then in 1954,
the provision became sec. 2040(a).
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