- 21 - supra (citing Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108 (1945)). Possession or enjoyment24 of the property transferred is retained where there is an express or implied understanding among the parties at the time of the transfer, even if the retained interest is not legally enforceable.25 Estate of Harper v. Commissioner, supra (citing Estate of Maxwell v. Commissioner, 3 F.3d 591, 593 (2d Cir. 1993), affg. 98 T.C. 594 (1992)); see also sec. 20.2036-1(a), Estate Tax Regs. (“An interest or right is treated as having been retained or reserved if at the time of the transfer there was an understanding, express or implied, that the interest or right would later be conferred.”). “The retention of a property’s income stream after the property has been transferred is ‘very clear evidence that the decedent did indeed retain possession or enjoyment.’” Estate of Schauerhamer v. 24The term enjoyment is “synonymous with substantial present economic benefit.” Estate of McNichol v. Commissioner, 265 F.2d 667, 671 (3d Cir. 1959), affg. 29 T.C. 1179 (1958); see Estate of Reichardt v. Commissioner, 114 T.C. 144, 151 (2000). 25Whether there exists an implied agreement is a question of fact to be determined with reference to the facts and circumstances of the transfer and the subsequent use of the property. Estate of Reichardt v. Commissioner, supra. And, the taxpayer “bears the burden (which is especially onerous for transactions involving family members) of proving that an implied agreement or understanding between decedent and his children did not exist when he transferred the property at issue to the trust and to the partnership.” Id. at 151-152; see also Estate of Hendry v. Commissioner, 62 T.C. 861 (2000).Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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