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Commissioner, 382 F.3d 367, 375 (3d Cir. 2004), affg. T.C. Memo.
2002-246; Estate of Maxwell v. Commissioner, 3 F.3d 591, 594 (2d
Cir. 1993), affg. 98 T.C. 594 (1992); Estate of Reichardt v.
Commissioner, 114 T.C. 144, 151-152 (2000). Whether there was
such an understanding or agreement is determined from all of the
facts and circumstances surrounding both the transfer itself and
the assets’ subsequent use. See Estate of Abraham v.
Commissioner, T.C. Memo. 2004-39, affd. 408 F.3d 26 (1st Cir.
2005). In the context of this case, the term “enjoyment”
includes present economic benefits. See Guynn v. United States,
437 F.2d 1148, 1150 (4th Cir. 1971); Estate of Reichardt v.
Commissioner, supra at 151.
The estate contends that there was neither an express nor an
implied agreement for decedent to retain possession, enjoyment,
or the right to income from the assets that she transferred to
RLP. We disagree. We find on the basis of the credible evidence
at hand that decedent and her sons had an implied understanding
that decedent would retain enjoyment and the right to income from
the transferred assets.8
The RLP agreement reflects an understanding among decedent
and her sons that decedent would retain her interest in the
8 Given this finding, we need not and do not decide whether
they also had an express agreement that decedent would retain
enjoyment and the right to income from the transferred assets.
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