- 27 - unequivocally, irrevocably, and without possible reservations, parts with all of his title and all of his possession and all of his enjoyment of the transferred property.” Commissioner v. Estate of Church, 335 U.S. 632, 645 (1949). Under section 2036(a), a transferor retains the enjoyment of the property transferred if there is an express or implied agreement at the time of the transfer that the transferor will retain the present economic benefits of the property, even if the retained right is not legally enforceable. See Estate of Reichardt v. Commissioner, 114 T.C. 144, 151 (2000); sec. 20.2036-1(a), Estate Tax Regs. In deciding whether there was an implied agreement, the Court considers all of the facts and circumstances surrounding the transfer and the subsequent use of the property. See Estate of Reichardt v. Commissioner, supra at 151. Where the decedent conveys all or nearly all of his or her assets to a trust or partnership, this may suggest an implied agreement that the decedent can continue to use the assets. See id. at 153. Section 2036 applies not only if a transferor retains possession or enjoyment of property but also if a transferor retains the right to income from the property. See sec. 2036(a)(1); Estate of Reichardt v. Commissioner, supra at 153. Moreover, if a decedent’s relationship to the assets transferred to a partnership remains the same after the transfer as it was before the transfer, the value of the assets may bePage: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
Last modified: May 25, 2011