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Revenue Act of 1926, ch. 27, sec. 302(c), 44 Stat. 70. The
statute explicitly created an irrebuttable presumption that
certain transfers made within 2 years of the decedent’s death
were in contemplation of death. The Supreme Court held that this
irrebuttable presumption violated Fifth Amendment requirements of
due process because it precluded “ascertainment of the truth” as
to whether “the thought of death” was “the impelling cause of the
transfer” so as to satisfy the circumstance upon which the tax
“explicitly is based”. Heiner v. Donnan, supra at 327-328.
Subsequently, Congress amended the tax laws to delete the
conclusive presumption. Until 1976, however, transfers made “in
contemplation of death” continued to be included in the gross
estate. Certain transfers were presumed to be made “in
contemplation of death” unless the executor could prove
otherwise. Sec. 2035(a), I.R.C. 1954.
To eliminate the “considerable litigation” that had ensued
from the prior rule regarding gifts in contemplation of death,
the Tax Reform Act of 1976 (the 1976 Act), Pub. L. 94-455, sec.
2001(a)(5), (d)(1), 90 Stat. 1848, amended section 2035(a) to
require inclusion in the gross estate of all gifts made within 3
years of the decedent’s death, without regard to whether they
12(...continued)
evasion of the estate tax.” United States v. Wells, 283 U.S.
102, 117 (1931).
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