- 29 -
of decedent or his estate, rather than exigencies pertaining to
Stranco or the partnership itself.
Hence, the preponderance of the evidence establishes that
decedent retained possession of, enjoyment of, or the right to
income from the property transferred within the meaning of
section 2036(a)(1).
2. Section 2036(a)(2)
Although we have held supra that section 2036(a)(1) requires
the estate to include the value of the transferred assets in the
gross estate for Federal estate tax purposes, the parties have
argued extensively over the issue of whether section 2036(a)(2)
applies. Consequently, we address the applicability of section
2036(a)(2) to the instant case. As stated above, section
2036(a)(2) mandates inclusion in the gross estate of transferred
property with respect to which the decedent retained the right to
designate the persons who shall possess or enjoy the property or
its income. This provision was interpreted by the Supreme Court
in United States v. Byrum, 408 U.S. 125 (1972), and both parties
devote a significant portion of their respective arguments to the
implications of that decision. We address these arguments as an
alternative to our conclusions concerning section 2036(a)(1) and
with particular consideration of the facts of this case.
In United States v. Byrum, supra at 126, the decedent,
Mr. Byrum, created an irrevocable trust for the benefit of his
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: May 25, 2011