-41-
(3d Cir. 1959), affg. 29 T.C. 1179 (1958); see also Estate of
Reichardt v. Commissioner, 114 T.C. 144, 151 (2000). Regulations
additionally provide that use, possession, right to income, or
other enjoyment of transferred property is considered as having
been retained or reserved “to the extent that the use,
possession, right to the income, or other enjoyment is to be
applied toward the discharge of a legal obligation of the
decedent, or otherwise for his pecuniary benefit.” Sec. 20.2036-
1(b)(2), Estate Tax Regs. Moreover, possession or enjoyment of
transferred property is retained for purposes of section
2036(a)(1) where there is an express or implied understanding to
that effect among the parties at the time of the transfer, even
if the retained interest is not legally enforceable. Estate of
Maxwell v. Commissioner, 3 F.3d 591, 593 (2d Cir. 1993), affg. 98
T.C. 594 (1992); Guynn v. United States, supra at 1150; Estate of
Reichardt v. Commissioner, supra at 151; Estate of Rapelje v.
Commissioner, 73 T.C. 82, 86 (1979). The existence or
nonexistence of such an understanding is determined from all of
the facts and circumstances surrounding both the transfer itself
and the subsequent use of the property. Estate of Reichardt v.
Commissioner, supra at 151; Estate of Rapelje v. Commissioner,
supra at 86.
As used in section 2036(a)(2), the term “right” has been
construed to “connote[] an ascertainable and legally enforceable
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