Estate of Rebecca A. Wineman - Page 17




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          that decedent used much less than 76 percent of parcel 3 and the            
          main house.6  Petitioner also points to Dean’s testimony to the             
          effect that no agreement existed, implied or otherwise, for                 
          decedent to retain the possession and enjoyment of the partial              
          interests at the time she transferred those interests to her                
          children.  Respondent argues that Dean’s testimony is self-                 
          serving and contrary to the objective facts and circumstances.              
          Although Dean’s testimony was clearly self-serving, we disagree             
          with the assertion that the testimony  was contrary to the                  
          objective facts and circumstances, and we ultimately agree with             
          petitioner that decedent did not retain a life estate includable            
          in her gross estate under section 2036.                                     
               A decedent's reservation of a life interest need not be                
          provided for expressly in the instrument of transfer or                     
          enforceable under local law to be includable under section 2036.            
          See Estate of McNichol v. Commissioner, 29 T.C. 1179 (1958),                
          affd. 265 F.2d 667 (3d Cir. 1959).  An implied agreement at the             
          time of transfer for the decedent to continue possession or                 
          enjoyment of the property is sufficient and may be inferred from            
          all the circumstances surrounding the transfer.  See Guynn v.               



               6Petitioner's argument implies that decedent owned 76                  
          percent of the homestead property.  However, the parties                    
          stipulated that decedent owned 51 percent.  At trial, Dean                  
          testified that his father's testamentary trust owned the                    
          remaining 25 percent.                                                       





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