- 5 - 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).Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011