Estate of Theodore R. Thompson, Deceased, Betsy T. Turner, Executrix - Page 35




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          transferred by a decedent while he was alive cannot be excluded             
          from his gross estate unless he “absolutely, unequivocally,                 
          irrevocably, and without possible reservations, parts with all of           
          his title and all of his possession and all of his enjoyment of the         
          transferred property.”  Commissioner v. Estate of Church, 335 U.S.          
          632, 645 (1949).  Application of section 2036(a) depends upon               
          practical considerations; its effects are not dependent upon                
          “‘various niceties of the art of conveyancing’”.  Id. at 642                
          (quoting Klein v. United States, 283 U.S. 231, 234 (1931)).                 
               A.   Whether Decedent Retained Possession, Enjoyment, or the           
                    Right to the Income From the Transferred Property During          
                    His Lifetime; Section 2036(a)(1)                                  
               For purposes of section 2036(a)(1), a transferor retains the           
          enjoyment of property if there is an express or implied agreement           
          at the time of the transfer that the transferor will retain the             
          present economic benefits of the property, even if the retained             
          right is not legally enforceable.  See Guynn v. United States, 437          
          F.2d 1148, 1150 (4th Cir. 1971); Estate of McNichol v.                      
          Commissioner, 265 F.2d 667, 671 (3d Cir. 1959), affg. 29 T.C. 1179          
          (1958); Estate of Reichardt v. Commissioner, 114 T.C. 144, 151              
          (2000); see also sec. 20.2036-1(a) Estate Tax Regs.  The existence          
          of such an implied agreement or understanding can be inferred from          
          the facts and circumstances surrounding both the transfer itself            
          and the subsequent use of the property.  Estate of Reichardt v.             
          Commissioner, supra; Estate of Spruill v. Commissioner, 88 T.C.             






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