Estate of Albert Strangi, Deceased, Rosalie Gulig, Independent Executrix - Page 17

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          transferred property is retained for purposes of section                    
          2036(a)(1) where there is an express or implied understanding to            
          that effect among the parties at the time of the transfer, even             
          if the retained interest is not legally enforceable.  Estate of             
          Maxwell v. Commissioner, 3 F.3d 591, 593 (2d Cir. 1993), affg. 98           
          T.C. 594 (1992); Guynn v. United States, supra at 1150; Estate of           
          Reichardt v. Commissioner, supra at 151; Estate of Rapelje v.               
          Commissioner, 73 T.C. 82, 86 (1979).  The existence or                      
          nonexistence of such an understanding is determined from all of             
          the facts and circumstances surrounding both the transfer itself            
          and the subsequent use of the property.  Estate of Reichardt v.             
          Commissioner, supra at 151; Estate of Rapelje v. Commissioner,              
          supra at 86.                                                                
               As used in section 2036(a)(2), the term “right” has been               
          construed to connote “an ascertainable and legally enforceable              
          power”.  United States v. Byrum, 408 U.S. 125, 136 (1972).                  
          Nonetheless, regulations clarify:                                           
               With respect to such a power, it is immaterial                         
               (i) whether the power was exercisable alone or only in                 
               conjunction with another person or persons, whether or                 
               not having an adverse interest; (ii) in what capacity                  
               the power was exercisable by the decedent or by another                
               person or persons in conjunction with the decedent; and                
               (iii) whether the exercise of the power was subject to                 
               a contingency beyond the decedent’s control which did                  
               not occur before his death (e.g., the death of another                 
               person during the decedent’s lifetime).  The phrase,                   
               however, does not include a power over the transferred                 
               property itself which does not affect the enjoyment of                 
               the income received or earned during the decedent’s                    
               life. * * * Nor does the phrase apply to a power held                  





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