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equivalent of the value of an unencumbered estate. Accordingly,
we turn to whether decedent retained an interest within the
meaning of section 2036(a).
C. Existence of a Retained Interest
1. Contentions of the Parties
Respondent contends that the condominium is includable in
decedent’s gross estate on the grounds that decedent retained
possession and enjoyment through an implied or tacit agreement.
Respondent maintains that all of the circumstances relating to
the purported conveyance of the property and decedent’s continued
occupancy show an implicit arrangement bringing the residence
within the purview of section 2036(a)(1).
Conversely, the estate avers that the condominium is not
subject to inclusion in decedent’s gross estate under section
2036(a). It is the estate’s position that decedent relinquished
all legal and equitable rights to the property in 1993. In
support of this position, the estate emphasizes the following
facts: (1) Title was transferred to the trust; (2) the trustee
was bound by the trust terms and by fiduciary duties under State
law to hold and manage the property for the benefit of the
beneficiaries; (3) the beneficiaries were given an immediate
right to withdraw trust assets and thereby to defeat all other
rights; and (4) decedent gave up the economic benefit of being
able to generate cash by selling or borrowing against the
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