Estate of James G. Frazier, Deceased, James G. Frazier Jr., Executor - Page 10




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          never had the intention of removing the improvements from the               
          premises because FNF was a family-operated business that decedent           
          wanted to continue.  Additionally, respondent contends that                 
          removal of the improvements would destroy the assets and require            
          a “massive amount of effort”.                                               
               A decedent’s gross estate includes all property to the                 
          extent of the decedent’s interest therein at the time of his                
          death.  Sec. 2033.  A decedent’s interest in property is                    
          determined by State law.  Morgan v. Commissioner, 309 U.S. 78, 80           
          (1940).  The decisions of the State’s highest court are                     
          conclusive as to that State’s law, but in the absence of a                  
          decision by that court we may look to the State’s lower courts’             
          rulings and holdings.  Commissioner v. Estate of Bosch, 387 U.S.            
          456, 465 (1967).                                                            
               Under California law, a fixture is a thing that is so                  
          attached to realty as to be considered in law a part of the                 
          realty itself.  Cal. Civ. Code sec. 660 (West 1982).6  Generally,           
          a tenant of real property has no right to remove fixtures from              


               6  Sec. 660 of the California Civil Code provides, in                  
          relevant part:                                                              
                    A thing is deemed to be affixed to land when it is                
               attached to it by roots, as in the case of trees,                      
               vines, or shrubs; or imbedded in it, as in the case of                 
               walls; or permanently resting upon it, as in the case                  
               of buildings; or permanently attached to what is thus                  
               permanent, as by means of cement, plaster, nails,                      
               bolts, or screws * * *.                                                





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Last modified: May 25, 2011