Estate of Margot Stewart, Deceased, Brandon Stewart, Executor - Page 5

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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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