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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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