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ESTATE OF STEWART v. C.I.R.

No. 07-5370-ag.

617 F.3d 148 (2010)

ESTATE OF Margot STEWART, Deceased, Brandon Stewart, Executor, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided: August 9, 2010.

Attorney(s) appearing for the Case

Jennifer S. Smith ( Jerry D. Bernstein , on the brief), Blank Rome LLP, New York, NY, for Petitioner-Appellant.

Randolph L. Hutter ( Jonathan S. Cohen , on the brief) for Nathan J. Hochman , Assistant Attorney General, Tax Division, U.S. Department of Justice, Washington, D.C., for Respondent-Appellee.

Before: McLAUGHLIN, CALABRESI, and LIVINGSTON, Circuit Judges.

CALABRESI, Circuit Judge:

Decedent, Margot Stewart, gave a 49% share of a mixed-use building to her son Brandon Stewart ("Brandon"). Upon Margot Stewart's death, the Internal Revenue Service sought to include this gift in Margot Stewart's estate under 26 U.S.C. § 2036(a)(1), reasoning that Margot Stewart had "retained for [her] life . . . the possession or enjoyment of, or the right to the income from the property." The Tax Court, T.C. Memo...

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