Estate of Rose B. Posner, Deceased, David B. Posner, Personal Representative - Page 1

                                 T.C. Memo. 2004-112                                  

                               UNITED STATES TAX COURT                                

              ESTATE OF ROSE B. POSNER, DECEASED, DAVID B. POSNER,                    
                       PERSONAL REPRESENTATIVE, Petitioner v.                         
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 12780-01.            Filed May 10, 2004.                    

               Mark T. Willen and Peter E. Keith, for petitioner.                     
               C. Teddy Li, for respondent.                                           

                       MEMORANDUM FINDINGS OF FACT AND OPINION                        

               THORNTON, Judge:  Respondent determined a $1,114,795 Federal           
          estate tax deficiency with respect to the Estate of Rose B.                 
          Posner (the estate).  The parties have resolved all issues raised           
          in the notice of deficiency.  The estate contends, however, that            
          it is entitled to a $2,909,000 estate tax refund because certain            
          marital trust property was erroneously included in the gross                

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