- 63 - Section 2036(a) is designed to include in a decedent’s gross estate “‘transfers that are essentially testamentary--i.e., transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime.’” Estate of Abraham v. Commissioner, 408 F.3d 26, 37 (1st Cir. 2005) (quoting United States v. Estate of Grace, 395 U.S. 316, 320 (1969)), affg. T.C. Memo. 2004-39, amended 429 F.2d 294 (1st Cir. 2005). A decedent retains an interest described in section 2036(a) unless he “absolutely, unequivocally, irrevocably, and without possible reservations” parts with possession and enjoyment of the transferred property. Commissioner v. Estate of Church, 335 U.S. 632, 645 (1949). Possession or enjoyment of transferred property is retained for purposes of section 2036(a)(1) where there is an express or implied understanding to that effect among the parties at the time of the transfer, even if the retained interest is not legally enforceable. Sec. 20.2036-1(a), Estate Tax Regs.; see also Estate of Reichardt v. Commissioner, 114 T.C. 144, 151 (2000); Estate of Harper v. Commissioner, T.C. Memo. 2002-121. All of the facts and circumstances surrounding the transfer and subsequent use of the property are considered in deciding whether there was an implied agreement or understanding. Estate of Reichardt v. Commissioner, supra at 151. The taxpayer bears the burden of disproving thePage: Previous 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 NextLast modified: November 10, 2007