- 18 - solely by a person other than the decedent. But, for example, if the decedent reserved the unrestricted power to remove or discharge a trustee at any time and appoint himself as trustee, the decedent is considered as having the powers of the trustee. [Sec. 20.2036- 1(b)(3), Estate Tax Regs.] Additionally, retention of a right to exercise managerial power over transferred assets or investments does not of itself result in inclusion under section 2036(a)(2). United States v. Byrum, supra at 132-134. An exception to the treatment mandated by section 2036(a) exists where the facts establish “a bona fide sale for an adequate and full consideration in money or money’s worth”. B. Burden of Proof Typically, the burden of disproving the existence of an agreement regarding a retained interest has rested on the estate, and this burden has often been characterized as particularly onerous in intrafamily situations. Estate of Maxwell v. Commissioner, supra at 594; Estate of Reichardt v. Commissioner, supra at 151-152; Estate of Rapelje v. Commissioner, supra at 86. In this case, however, the section 2036 issues are new matters within the meaning of Rule 142(a). Thus, the burden of proof is on respondent. C. Existence of a Retained Interest Respondent contends that the value of the property transferred to SFLP and Stranco is includable in decedent’s gross estate under either section 2036(a)(1) or section 2036(a)(2).Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
Last modified: May 25, 2011