Estate of Charles Porter Schutt, Deceased, Charles P. Schutt, Jr., and Henry I. Brown III, Co-Executors - Page 41

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          (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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