- 35 - 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.Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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