Estate of Albert Strangi, Deceased, Rosalie Gulig, Independent Executrix - Page 18

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               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).               





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