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As the estate observes, the estate tax is sometimes
characterized as a tax on the privilege of transferring property
at death. See New York Trust Co. v. Eisner, 256 U.S. 345, 348-
349 (1921); Knowlton v. Moore, 178 U.S. 41, 56 (1900) (1898
Federal tax on legacies was constitutional as resting on “the
power to transmit, or the transmission from the dead to the
living”). As the Supreme Court has made clear, however, this
does not mean that the estate tax may be imposed only on
“transfers”. See Fernandez v. Wiener, 326 U.S. 340, 352 (1945)
(“It is true that the estate tax as originally devised and
constitutionally supported was a tax upon transfers. * * * But
the power of Congress to impose death taxes is not limited to the
taxation of transfers at death.”); see also Tyler v. United
States, 281 U.S. 497, 502 (1930); Bittker & Lokken, Federal
Taxation of Income, Estates and Gifts, par. 120.1.2, at 120-6 (2d
ed. 1993) (the transfer of property at death is a “sufficient
condition–-but not a necessary one–-for a constitutional tax”).
Technically, the Code imposes the estate tax on a single
“transfer”–-the “transfer of the taxable estate”. Sec. 2001(a).
The taxable estate is defined generally as the gross estate less
allowable deductions. Sec. 2051. The gross estate includes, to
the extent provided in various Code sections (including section
2035), the value at the time of a decedent’s death of “all
property, real or personal, tangible or intangible, wherever
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