- 13 -
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
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011