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at the time of the transfer, even if the retained interest is not
legally enforceable. Estate of Maxwell v. Commissioner, supra at
593; Guynn v. United States, supra at 1150; Estate of Reichardt
v. Commissioner, 114 T.C. 144, 151 (2000); Estate of Rapelje v.
Commissioner, 73 T.C. 82, 86 (1979); Estate of Honigman v.
Commissioner, supra at 1082; Estate of Linderme v. Commissioner,
52 T.C. 305, 308 (1969). Regulations likewise provide that “An
interest or right is treated as having been retained or reserved
if at the time of the transfer there was an understanding,
express or implied, that the interest or right would later be
conferred.” Sec. 20.2036-1(a), Estate Tax Regs.
The existence or nonexistence of such an understanding is
determined from all of the facts and circumstances surrounding
both the transfer itself and the subsequent use of the property.
Estate of Reichardt v. Commissioner, supra at 151; Estate of
Rapelje v. Commissioner, supra at 86. Traditionally, the burden
of disproving the existence of an agreement has rested on the
estate, and this burden has often been characterized as
particularly onerous in intrafamily situations. Estate of
Maxwell v. Commissioner, supra at 594; Estate of Reichardt v.
Commissioner, supra at 151-152; Estate of Rapelje v.
Commissioner, supra at 86. Furthermore, although recently
enacted section 7491 may operate in certain scenarios to place
the burden on the Commissioner, the statute is effective only for
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