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Thus, the transfer of the interest in the 61st Street property
was a completed gift.2
II. The Property Is Includable Pursuant to Section 2036
The estate acknowledges that decedent’s 51-percent interest
in the 61st Street property is includable in her estate but
contends that the remaining 49 percent of the property is owned
by Mr. Stewart (i.e., as a tenant in common). Respondent
contends that, pursuant to section 2036, 100 percent of the 61st
Street property’s value is includable in the estate because
decedent continued to live there and received all of the rental
income after the May 9, 2000, transfer.
Section 2036(a)(1) provides that a decedent's gross estate
includes the value of all property interests transferred (other
than for full and adequate consideration in money or money's
worth) by a decedent during her life where she has retained for
life the possession or enjoyment of the property, or the right to
the income from the property. The term “enjoyment” refers to the
economic benefits from the property. Estate of Gilman v.
Commissioner, 65 T.C. 296, 307 (1975), affd. 547 F.2d 32 (2d Cir.
2 In general, the Commissioner's determinations set forth
in a notice of deficiency are presumed correct, and the taxpayer
bears the burden of showing that the determinations are
erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933). Our conclusions, however, are based on a preponderance
of the evidence, and thus, the allocation of the burden of proof
is immaterial. See Martin Ice Cream Co. v. Commissioner, 110
T.C. 189, 210 n.16 (1998).
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