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spouse * * * during the 3-year period ending on the date of the
decedent’s death.”
In a legal memorandum filed with this Court on February 19,
2002, addressing the effect here of the decision of the U.S.
Court of Appeals for the Fourth Circuit in the refund litigation,
the estate concedes that it is “collaterally estopped from taking
a position other than that $4,680,284 is the amount of gift taxes
paid by or on behalf of the decedent for the gifts made in 1991
and 1992.” On its face, this concession would appear dispositive
in favor of respondent’s motion for summary judgment on this
issue. The estate contends otherwise.
The estate contends that the amount of gift taxes includable
in decedent’s gross estate under section 2035(c) should be
reduced to take into account “consideration received by the
decedent in connection with the payment of such gift taxes by him
and on his behalf.” The premise, as best we understand it, is
that even if decedent received no consideration for the 1991 and
1992 gifts of National Fruit stock, there is nevertheless a
factual issue as to whether decedent (or the estate) received
“consideration” for paying the gift taxes thereon.5 The estate
5 As previously discussed, in affirming the U.S. District
Court for the Western District of Virginia, the U.S. Court of
Appeals for the Fourth Circuit expressly concluded that the donee
children’s “obligation to pay additional gift taxes was both
speculative and illusory and did not reduce the value of the
stock transferred to them.” Estate of Armstrong v. United
(continued...)
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