Estate of Timothy J. Tehan, Deceased, Timothy R. Tehan, Executor - Page 17

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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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