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69.973% interest in ES3LP held by the AWS Trust at her [Ms.
Stone’s] death is * * * included in Mrs. Stone’s gross estate.”
In addition to the foregoing substantive disputes regarding
sections 2036(a)(1) and 2044, the parties disagree over whether
the burden of proof has shifted to respondent under section
7491(a). The parties’ disagreements under section 7491(a) relate
to the application in the instant cases of the term “credible
evidence” in section 7491(a)(1) and the factual issue or issues
with respect to which Mr. Stone’s estate and Ms. Stone’s estate
must introduce credible evidence in order for the burden of proof
regarding any such issue or issues to shift to respondent. We
need not and shall not address those disagreements under section
7491(a)(1). That is because resolution of the issues presented
under sections 2036(a)(1) and 2044 does not depend on who has the
burden of proof.
Section 2036(a)(1)
In order to resolve the parties’ dispute under section
2036(a)(1),67 we must consider the following three factual issues
67Sec. 2036(a)(1) provides:
SEC. 2036. TRANSFERS WITH RETAINED LIFE ESTATE.
(a) General Rule.--The value of the gross estate
shall include the value of all property to the extent
of any interest therein of which the decedent has at
any time made a transfer (except in case of a bona fide
sale for an adequate and full consideration in money or
money’s worth), by trust or otherwise, under which he
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