Estate of Hilde E. Erickson, Deceased, Donor, Karen E. Lange, Personal Representative - Page 14




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          argues that Mrs. Erickson retained the possession or enjoyment              
          of, or the right to the income from, the transferred assets.                
          Respondent argues, further, that the assets were not transferred            
          in a bona fide sale for adequate and full consideration.  The               
          estate counters that Mrs. Erickson retained no rights to the                
          assets once she transferred them to the Partnership and,                    
          alternatively, that the assets were transferred in a bona fide              
          sale for adequate and full consideration.  We shall consider the            
          parties’ arguments after first addressing the burden of proof.              
          I.   Burden of Proof                                                        
               The estate orally moved at trial to shift the burden of                
          proof under section 7491.  We took the oral motion under                    
          advisement and now conclude, after carefully reviewing the                  
          record, that we must deny the estate’s motion to shift the burden           
          of proof.                                                                   




               3(...continued)                                                        
          transferred to the trusts for Mrs. Erickson’s grandchildren (the            
          grandchildren’s gifts) under sec. 2035(a) to the extent that the            
          grandchildren’s gifts severed the interests Mrs. Erickson                   
          retained in her property under sec. 2036.  Second, respondent               
          argues that the gross estate includes the gift tax on the                   
          grandchildren’s gifts pursuant to sec. 2035(b).  The estate did             
          not address either of these issues at trial or on brief, and we             
          shall treat the estate as having conceded them.  See Rybak v.               
          Commissioner, 91 T.C. 524, 566 (1988).  Finally, the parties do             
          not dispute that the generation-skipping transfer tax under sec.            
          2601 applies and the amount of this tax will be calculated                  
          pursuant to our decision.                                                   






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