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enforceable right to do so. Guynn v. United States, 437 F.2d
1148, 1150 (4th Cir. 1971); Estate of Rapelje v. Commissioner, 73
T.C. 82, 86 (1979); Estate of Honigman v. Commissioner, 66 T.C.
1080, 1082 (1976); Estate of Barlow v. Commissioner, 55 T.C. 666,
670 (1971).
In the case of real property, the terms “‘possession’ and
‘enjoyment’ [in section 2036(a)(1)] have been interpreted to mean
‘the lifetime use of the property.’” Estate of Maxwell v.
Commissioner, 3 F.3d 591, 593 (2d Cir. 1993) (quoting United
States v. Byrum, 408 U.S. 125, 147 (1972)), affg. 98 T.C. 594
(1992).
In the present case, there was an express agreement, namely
the November 5, 1997 agreement, which was executed on the same
date on which the first deed was executed, under which decedent
continued during his lifetime to (1) use and occupy, i.e.,
possess and enjoy, decedent’s residence, (2) pay all of the
monthly expenses with respect to that residence,12 and (3) other-
wise treat that residence as his own. At no time did decedent
need permission from his children in order to have guests at
decedent’s residence or to redecorate it. At no time during
decedent’s life did any of decedent’s children use or occupy
decedent’s residence or pay any of the monthly expenses with
12Decedent’s children would not have required decedent to
vacate decedent’s residence if he had failed to pay the monthly
expenses.
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