Estate of Rebecca A. Wineman - Page 20




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          unusual.  Cf. Gutchess v. Commissioner, 46 T.C. 554, 557 (1966)             
          (where a husband transferred his entire interest in a homestead             
          property to his wife, who then allowed him to live in the house             
          without charge, the donor's continued use and enjoyment is a                
          natural use which does not diminish the wife's enjoyment and                
          possession).  In this case, decedent's continued use and                    
          possession of parcel 3, of which she owned a controlling                    
          interest, is natural in light of the children's minority                    
          ownership.  It is not surprising that the children did not seek             
          to partition the property, since they also used the property                
          regularly and they had only a minority interest in the property.            
               In addition to the objective facts, our decision rests                 
          heavily on Dean’s testimony that there was no understanding                 
          between decedent and her children.  While his testimony was                 
          clearly self-serving, Dean's testimony was straightforward,                 
          unequivocal, and credible.  Respondent’s counsel chose not to               
          cross-examine him on this point.  Because we credit his                     
          testimony, we hold that petitioner has carried its burden of                
          proving that there was no implied agreement.  Cf. Hendry v.                 
          Commissioner, 62 T.C. 861, 872 (1974).                                      
          II. Taxable Gifts Adjustment                                                
               The second issue is whether decedent rented ranch property             
          to her children at a below-market rate, thereby making a taxable            
          gift to her children.  In the notice of deficiency, respondent              





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