Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 25




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          legally enforceable.  Estate of Maxwell v. Commissioner, 3 F.3d             
          591, 593 (2d Cir. 1993), affg. 98 T.C. 594 (1992); Guynn v.                 
          United States, supra at 1150; Estate of Reichardt v.                        
          Commissioner, supra at 151; Estate of Rapelje v. Commissioner, 73           
          T.C. 82, 86 (1979).  Regulations likewise provide that “An                  
          interest or right is treated as having been retained or reserved            
          if at the time of the transfer there was an understanding,                  
          express or implied, that the interest or right would later be               
          conferred.”  Sec. 20.2036-1(a), Estate Tax Regs.                            
               The existence or nonexistence of such an understanding is              
          determined from all of the facts and circumstances surrounding              
          both the transfer itself and the subsequent use of the property.            
          Estate of Reichardt v. Commissioner, supra at 151; Estate of                
          Rapelje v. Commissioner, supra at 86.  However, an exception to             
          the treatment mandated by section 2036(a) exists where the facts            
          establish “a bona fide sale for an adequate and full                        
          consideration in money or money’s worth”.                                   
               B.  Burden of Proof                                                    
               Typically, the burden of disproving the existence of an                
          agreement regarding retained enjoyment has rested on the estate,            
          and this burden has often been characterized as particularly                
          onerous in intrafamily situations.  Estate of Maxwell v.                    
          Commissioner, supra at 594; Estate of Reichardt v. Commissioner,            
          supra at 151-152; Estate of Rapelje v. Commissioner, supra at 86.           






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