Estate of Eleanor T.R. Trotter - Page 13

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          property.  The estate thus concludes that decedent “had                     
          possession of the Real Estate as a tenant and she paid for the              
          same”, based on her payment of all occupancy costs.  We disagree            
          for the reasons explained below.                                            
                    2.  Analysis                                                      
               The totality of the circumstances presently before us                  
          requires a conclusion that an implied understanding existed                 
          between decedent and her family members that she would retain               
          possession and enjoyment of her condominium within the meaning of           
          section 2036(a)(1).  The facts of this case are not such that it            
          can be distinguished in any material way from the substantial               
          body of case law mandating inclusion in the context of continued            
          occupancy of a personal residence.  As we shall detail infra, the           
          principal factors relied upon in such opinions are equally in               
          evidence here, and additional indicia unique to decedent’s                  
          situation buttress the adverse inference.                                   
               To begin with, we and other courts have characterized the              
          continued exclusive possession by the donor and the withholding             
          of possession from the donee as particularly significant factors.           
          Guynn v. United States, 437 F.2d at 1150;  Estate of Rapelje v.             
          Commissioner, 73 T.C. at 87; Estate of Linderme v. Commissioner,            
          52 T.C. at 309.  Here, too, decedent continued to occupy the                

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