- 12 - 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 thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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