Estate of Timothy J. Tehan, Deceased, Timothy R. Tehan, Executor - Page 13

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                                       OPINION                                        
               We first address section 7491(a).  The parties agree that              
          section 7491(a) is applicable in the instant case.  The parties             
          disagree, however, over whether the burden of proof has shifted             
          to respondent under section 7491(a) with respect to the issue               
          presented under section 2036(a)(1).10  We need not and shall not            
          address that disagreement.  That is because resolution of the               
          issue presented under section 2036(a)(1) does not depend on who             
          has the burden of proof.                                                    
          Section 2036(a)(1)                                                          
               The only dispute between the parties under section                     
          2036(a)(1)11 is whether decedent retained for his life the                  

               9(...continued)                                                        
          should be increased from $11,178 to $11,607.  At trial, the                 
          estate conceded respondent’s determination in the notice to                 
          disallow $2,500 of the $10,000 of attorney’s fees that the estate           
          claimed as a deduction under sec. 2053.                                     
               10Petitioner does not claim that the burden of proof has               
          shifted to respondent under sec. 7491(a) with respect to the                
          issue presented under sec. 2053.                                            
               11Sec. 2036(a)(1) provides:                                            
               SEC. 2036.  TRANSFERS WITH RETAINED LIFE ESTATE.                       
                    (a) General Rule.--The value of the gross estate                  
               shall include the value of all property to the extent                  
               of any interest therein of which the decedent has at                   
               any time made a transfer (except in case of a bona fide                
               sale for an adequate and full consideration in money or                
               money’s worth), by trust or otherwise, under which he                  
               has retained for his life or for any period not ascer-                 
               tainable without reference to his death or for any                     
                                                             (continued...)           





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