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breach, petitioner contends, resulted in a constructive trust on
decedent's property to the extent of the gifts authorized but not
yet made. Accordingly, petitioner argues that, when the
remaining gifts were completed, they related back to the date of
the creation of the constructive trust. Consequently, petitioner
argues that such gifts should not be included in decedent's gross
estate.3 Petitioner bears the burden of proof. See Rule 142.
That the instant case was submitted to the Court fully stipulated
does not relieve petitioner of that burden. King's Court Mobile
Home Park, Inc. v. Commissioner, 98 T.C. 511, 517 (1992).
“State law creates legal interests and rights. The federal
revenue acts designate what interests or rights, so created,
shall be taxed.” Morgan v. Commissioner, 309 U.S. 78, 80 (1940).
Nebraska law provides, that in order for a conveyance to be a
completed intervivos gift, there must be donative intent,
delivery, and acceptance. See Lewis v. Poduska, 481 N.W.2d. 898,
902 (Neb. 1992). Although Nebraska courts have sustained gifts
where delivery was incomplete, they have done so only where it is
clear that the donor took all of the necessary steps to complete
the gift and the possibility that completion of the gift might
fail was in the hands of another party. See Rorabaugh v. Garvis,
3 Although petitioner claimed on the estate tax return a
deduction for the gifts made pursuant to the order, petitioner
has conceded by stipulation that sec. 2053 does not support the
deduction of those gifts from the gross estate.
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