Estate of Frank Armstrong, Jr., Deceased, Frank Armstrong III, Executor - Page 20




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          were made in contemplation of death (hereinafter, this is                   
          sometimes referred to as the 3-year rule).13                                
               In Estate of Rosenberg v. Commissioner, 86 T.C. 980, 995-999           
          (1986), affd. without published opinion 812 F.2d 1401 (4th Cir.             
          1987), this Court rejected a contention that the 3-year rule                
          violated substantive due process under the Fifth Amendment.  This           
          Court noted that in Mourning v. Family Publns. Serv., Inc., 411             
          U.S. 356, 377 (1973), the Supreme Court had stated that Heiner v.           
          Donnan, supra, was inapplicable to a case involving a provision             
          “intended as a prophylactic measure” rather than a conclusive               
          presumption of determinative facts.  Estate of Rosenberg v.                 
          Commissioner, supra at 989.  Thus distinguishing Heiner v.                  
          Donnan, supra, this Court held that section 2035(a) involved a              
          classification based upon “prophylactic” grounds and that the               
          classification was constitutionally valid as bearing a rational             
          relationship to the legitimate legislative goal of discouraging             
          “the abuse of gift giving aimed at tax avoidance or gifts made as           
          substitutes for testamentary dispositions”.  Id. at 996.                    
               Similarly, in Estate of Ekins v. Commissioner, 797 F.2d 481,           
          485-486 (7th Cir. 1986), the U.S. Court of Appeals for the                  
          Seventh Circuit rejected a Fifth Amendment due process challenge            

               13 In 1981, the 3-year rule of sec. 2035(a) was made                   
          generally inapplicable to estates of decedents dying after                  
          Dec. 31, 1981, except with respect to certain specified types of            
          transfers.  Economic Recovery Tax Act of 1981, Pub. L. 97-34,               
          sec. 424(c), 95 Stat. 317.                                                  





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