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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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