-25-
to Funny Hats is determined from all of the facts and
circumstances surrounding both the transfer itself and the
subsequent use of the residence. See Estate of Abraham v.
Commissioner, supra at 39. We carefully scrutinize the facts and
circumstances of a case such as this that involves an intrafamily
transaction. See Estate of Hartshorne v. Commissioner, 402 F.2d
592, 594 n.2 (2d Cir. 1968), affg. 48 T.C. 882 (1967); Estate of
Huntington v. Commissioner, 100 T.C. 313, 316 (1993); Estate of
Labombarde v. Commissioner, 58 T.C. 745 (1972), affd. per curiam
without published opinion 502 F.2d 1158 (1st Cir. 1973); cf.
Estate of Abraham v. Commissioner, supra at 39; Estate of Maxwell
v. Commissioner, 98 T.C. at 602.
Section 7491 was added to the Code by the Internal Revenue
Service Restructuring and Reform Act of 1998, Pub. L. 105-206,
sec. 3001(c), 112 Stat. 727, effective for court proceedings
arising from examinations commencing after July 22, 1998.
Section 7491(a)(1) provides that the burden of proof is on the
Commissioner in specified circumstances. While petitioner makes
no argument that section 7491(a)(1) applies here, we need not and
do not decide whether petitioner has met all of the prerequisites
for that section to apply. See, e.g., sec. 7491(a)(2) (section
7491(a)(1) applies only when certain limitations are met). We
decide this case without regard to which party bears the burden
of proof. Specifically, on the basis of the record at hand, we
Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 NextLast modified: May 25, 2011