Estate of Timothy J. Tehan, Deceased, Timothy R. Tehan, Executor - Page 16

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               In support of respondent’s position under section                      
          2036(a)(1), respondent argues:                                              
                    A decedent’s gross estate includes property inter-                
               ests with a retained life estate.  I.R.C. � 2036(a).                   
               Inclusion is required where the decedent retained                      
               “possession or enjoyment” or right to income from                      
               property transferred for less than full consideration.                 
               I.R.C. �* * * 2036(a)(1)* * *.  Here, the decedent                     
               retained the necessary “possession or enjoyment” of his                
               personal residence–Unit #610N such that its value                      
               should be included in the decedent’s gross estate.                     
               Even though the decedent and his eight children exe-                   
               cuted a series of conveyances transferring legal title                 
               to Unit #610N, no consideration was paid by the dece-                  
               dent’s children for the conveyance.  The decedent paid                 
               all of the expenses for Unit #610N before, during, and                 
               after the series of conveyances.  The decedent did not                 
               pay any rent for the occupancy of Unit #610N before,                   
               during, and after the series of conveyances.  His                      
               “possession or enjoyment” of Unit #610N was undisturbed                
               during and after the series of transfers.  He did not                  
               need the approval of his children to have guests or                    
               redecorate Unit #610N.  It was uncontroverted at trial                 
               that even if the decedent had not paid expenses to                     
               maintain Unit #610N during and after the series of                     
               transfers, his children would not have sought to evict                 
               him from Unit #610N.  Finally, as legal title of the                   
               decedent’s eight children in Unit #610N increased                      
               progressively to 36%, then 72% and, finally, 100%, the                 
               decedent still paid all of the expenses to maintain                    
               Unit #610N without reflecting any change in ownership.                 
                    When all is said and done, the decedent retained                  
               complete “possession or enjoyment” over Unit #610N                     
               before, during, and after the series of transfers.  As                 
               such, Code section 2036 mandates that the value of Unit                
               #610N be included in the decedent’s gross estate. * * *                
               Section 2036(a)(1) applies if there exists at the time of              
          the transfer of property an agreement, either express or implied,           
          that the transferor will retain possession or enjoyment of the              
          property transferred, even if the transferor has no legally                 






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