Estate of Eleanor T.R. Trotter - Page 18




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          advanced by the Commissioner may at times have been rejected as             
          insufficient for inclusion under either paragraph of section                
          2036(a).  See Estate of Beckwith v. Commissioner, supra at 248-             
          251.  Nonetheless, we are firmly convinced that the cases which             
          deal with retained “possession or enjoyment” of a residence for             
          purposes of section 2036(a)(1), which the estate’s cited cases do           
          not, establish the relevant standards and must govern our                   
          decision here.  Accordingly, the estate’s reliance on these                 
          legally and factually distinguishable opinions is misplaced.                
               Therefore, in light of all the facts and circumstances                 
          present in this case, we hold that decedent retained possession             
          and enjoyment of the condominium within the meaning of section              
          2036(a)(1).  The value of the condominium must be included in her           
          gross estate.                                                               
          II.  Valuation of the Condominium                                           
               Regulations promulgated under section 2036 provide the                 
          following with regard to the value to be included in the gross              
          estate pursuant to that statute:                                            
               If the decedent retained or reserved an interest or                    
               right with respect to all of the property transferred                  
               by him, the amount to be included in his gross estate                  
               under section 2036 is the value of the entire property,                
               less only the value of any outstanding income interest                 
               which is not subject to the decedent’s interest or                     
               right and which is actually being enjoyed by another                   
               person at the time of the decedent’s death.  If the                    
               decedent retained or reserved an interest or right with                
               respect to a part only of the property transferred by                  
               him, the amount to be included in his gross estate                     






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