Estate of Ida Abraham, Deceased, Donna M. Cawley, and Diana A. Slater, Administratrixes - Page 21

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          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).                                 




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