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to pay any rent,14 let alone fair rental value, for his posses-
sion and enjoyment of decedent’s residence.15
Based upon our examination of the entire record before us,
we find that decedent retained a life estate in decedent’s
residence during the period November 5, 1997, until the date of
his death. On that record, we further find that decedent re-
tained possession and enjoyment of decedent’s residence within
the meaning of section 2036(a)(1). On the record before us, we
find that the value of decedent’s residence is includible in
decedent’s gross estate under that section.16
Section 2053
The estate has the burden of establishing its entitlement to
deduct under section 2053 the claimed personal representative’s
14Indeed, the November 5, 1997 agreement provides that
decedent “shall not pay any rent” while occupying decedent’s
residence.
15Despite the purported decrease in decedent’s ownership
interest in decedent’s residence under the first deed, the second
deed, and the third deed, decedent paid all of the monthly
expenses with respect to that residence.
16For the first time on brief, the estate advances an alter-
native argument that “if inclusion [of decedent’s residence] in
the taxable estate were to be based upon the decedent’s remaining
in the property for six weeks when he had no contractual right to
do so, it should be limited to the 28% interest conveyed in
1999.” On the record before us, we reject the estate’s alterna-
tive argument. In finding that decedent retained possession and
enjoyment of decedent’s residence within the meaning of sec.
2036(a)(1), we have not relied only on decedent’s remaining in
that residence during the period starting on the date on which
the third deed was executed until the date of his death.
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