-19-
A decedent retains possession or enjoyment of transferred
property under section 2036 where there is an express or implied
understanding to that effect among the parties, even if the
retained interest is not legally enforceable. Estate of Maxwell
v. Commissioner, 3 F.3d 591, 593 (2d Cir. 1993), affg. 98 T.C.
594 (1992); Guynn v. United States, 437 F.2d 1148, 1150 (4th Cir.
1971); Estate of Reichardt v. Commissioner, supra at 151; see
also sec. 20.2036-1(a), Estate Tax Regs. The accounting
treatment of the transactions is also not controlling. Estate of
Strangi v. Commissioner, T.C. Memo. 2003-145.
Whether the parties had an understanding amongst themselves
is determined from the facts and circumstances surrounding the
transfer and the subsequent use of the property. Estate of
Abraham v. Commissioner, supra at 39; Estate of Reichardt v.
Commissioner, supra at 151. No one fact is determinative. We
must carefully scrutinize the facts and circumstances here
because intrafamily transactions are involved. See Estate of
Maxwell v. Commissioner, 98 T.C. at 602. We examine whether the
terms and conditions of the transfer of assets to the family
limited partnership are the same as if unrelated parties had
engaged in the same transaction. See Estate of Rosen v.
Commissioner, T.C. Memo. 2006-115 (citing Estate of Bongard v.
Commissioner, supra at 123).
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