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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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