Extent of Retained Possession or Enjoyment Key To Determining Reach of I.R.C. §2036(a)(1)
The U.S. Court of Appeals for the Second Circuit has ruled that the inclusion of property in a decedent’s gross estate over which the decedent retained possession or enjoyment at the time of death by an implied agreement is to be apportioned to the extent the decedent actually exercised possession or enjoyment over the property. As such, the decedent’s post-transfer, pre-death conduct concerning the property is critical. The court’s opinion also points out that careful drafting of pre-death agreements for the usage or enjoyment of property interests that have been given away can result in tax savings beyond those generated by valuation discounts if combined with appropriate conduct by the transferor.
The Center for Agricultural Law and Taxation does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. The Center's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.