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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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