Estate of Duilio Costanza - Page 11

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               We do not agree with respondent’s original assertion that,             
          after the transfer of the properties, decedent retained the power           
          to revoke the transfer, thus requiring the inclusion of their               
          value in his gross estate under section 2038.  The documents in             
          evidence do not show that decedent retained such a power.  Nor              
          does the evidence support a finding that in executing the                   
          transfer Michael violated his duties as a trustee, thus rendering           
          the transfer revocable by operation of law.  This case is thus              
          distinguishable from those cases cited by respondent wherein an             
          attorney made unauthorized gifts to the decedent’s heirs,                   
          rendering such gifts revocable under section 2038.  Cf. Estate of           
          Swanson v. United States, 46 Fed. Cl. 388 (2000).2                          
               Our conclusion that the transfer was a gift requires that we           
          ascertain its value.  That is, we must decide the extent to which           
          the value of the properties transferred exceeded the                        
          consideration paid.  We believe that the properties were worth at           
          least $843,000 on December 15, 1992, the date of their sale.3               
               Both parties have offered expert valuation testimony and               
          exhibits to establish the value of the Latina restaurant and                

               2We note that respondent has not argued on brief that the              
          value of the gifts should be included in decedent’s gross estate            
          under sec. 2035, and we do not decide that issue.                           
               3Although the actual sale may have taken place within a few            
          weeks after Dec. 15, 1992, there is no basis to conclude that the           
          passage of those few weeks would have affected the properties’              
          value significantly.                                                        

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