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estate, not limited by the form of the transaction, but concerned
with all inter vivos transfers where outright disposition of the
property is delayed until the transferor’s death.” Guynn v.
United States, 437 F.2d 1148, 1150 (4th Cir. 1971).
In order not to have retained an interest described in
section 2036(a)(1), decedent must have “absolutely,
unequivocally, irrevocably, and without possible reservations,”
parted with all of her title, possession, and enjoyment of the
transferred assets. Commissioner v. Estate of Church, 335 U.S.
632, 645 (1949). Decedent will have retained an interest in the
transferred assets to the extent that the assets were transferred
with an understanding or agreement, express or implied, that the
possession or enjoyment of, or the right to the income from, the
assets would be for decedent’s pecuniary benefit. See Guynn v.
United States, supra at 1150; Estate of Rapelje v. Commissioner,
73 T.C. 82, 86 (1979); sec. 20.2036-1(a) and (b)(2), Estate Tax
Regs.; see also United States v. Byrum, 408 U.S. 125, 145, 150
(1972) (in the context of section 2036(a)(1), the word
“enjoyment” denotes the receipt of a “substantial present
economic benefit” as opposed to “a speculative and contingent
benefit which may or may not be realized”). Such is so even if
the retained interest is not legally enforceable. See Estate of
Abraham v. Commissioner, 408 F.3d 26, 39 (1st Cir. 2005), affg.
T.C. Memo. 2004-39; Estate of Maxwell v. Commissioner, 3 F.3d
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