Estate of Eugene E. Stone, III, Deceased, C. Rivers Stone, E.E. Stone, IV, Mary Stone Fraser & Rosalie Stone Morris, Co-Personal Representatives - Page 25

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         Stone and Ms. Stone to each of the Five Partnerships were bona               
         fide sales for adequate and full consideration in money or                   
         money’s worth under section 2036(a).  Consequently, we need not              
         and shall not address the third factual issue presented under                
         section 2036(a)(1).                                                          
              Ultimate Holdings                                                       
              Based upon our examination of the entire record before us,              
         we hold that none of the assets owned by any of the Five Partner-            
         ships (1) on the date of Mr. Stone’s death is includible under               
         section 2036(a)(1) in his gross estate and (2) on the date of Ms.            
         Stone’s death is includible under section 2036(a)(1) in her gross            
         estate.                                                                      
         Section 2044                                                                 
              Respondent argues that, because section 2036(a)(1) requires             
         the inclusion in Mr. Stone’s gross estate of 69.973 percent of               
         the assets of ES3LP on the date of his death, section 2044 re-               
         quires the inclusion in Ms. Stone’s gross estate of 69.973 per-              
         cent of the assets of ES3LP on the date of her death.78  We have             
         rejected respondent’s position that section 2036(a)(1) requires              
         the inclusion in Mr. Stone’s gross estate of 69.973 percent of               


               78Respondent did not raise sec. 2044 in the notice issued to           
          Ms. Stone’s estate or in the answer.  We conclude that respon-              
          dent’s reliance on sec. 2044 raises a new issue that respondent             
          advances for the first time on brief.  However, the estates do              
          not object to, and we find no prejudice to the estates as a                 
          result of, respondent’s raising that issue for the first time on            
          brief.                                                                      




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