- 15 - controlling where, as here, we are dealing with mortgage indebtedness under section 2053(a)(4). (Respondent cites only section 2053(a)(4) in support of the Government’s position on inclusion.) Moreover, while we pointed out in Estate of Theis v. Commissioner, 81 T.C. 741, 749-750 (1983), affd. 770 F.2d 981 (11th Cir. 1985), that section 2053(a)(4) was not intended to apply where the decedent was only secondarily liable or an accommodation party, we went on to state that “Section 20.2053-7, Estate Tax Regs., like section 2053(a)(4), was intended to cover situations involving the liability for mortgages on a decedent’s own property.” Thus, Estate of Theis v. Commissioner, supra, hardly stands for the principle that practicalities should override legal liability where a decedent is the named primary obligor, on an explicitly recourse note, encumbering his or her own fee interest in a parcel, particularly where the transaction involved no third parties whom the decedent might have been accommodating. Furthermore, this Court has previously embraced the notion that potential liability can be sufficient for purposes of section 20.2053-7, Estate Tax Regs., in a case somewhat analogous to that now before the Court. In Estate of Linderoth v. Commissioner, T.C. Memo. 1986-547, a residence was encumbered by deeds of trust securing promissory notes. The property was located in Nevada, where a statutory “one action rule” couldPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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