Journal of Taxation
Section 2036(c) was originally an estate tax inclusion provision only. Hence, if the original transferor disposed of the retained interest (at least three years prior to death), Section 2036(c) would not operate on the originally transferred interest. The section was unclear in its application if the original transferee disposed of the transferred interest. In any event, TAMRA adds a type of gift tax provision. Under Section 2036(c)(4)(A), if either the original transferred property to a person other than a member of the family of the original transferor, or the original transferor (e.g., the parent) transfers the retained interest, then the original transferee. It seems that even the original transferor's transfer of the retained interest to a family member triggers the deemed gift. Although Section 2036(c) applies to "in effect" transfers, the subsequent dispositions by the original transferor or transferee which are deemed to be gifts under Sections 2036(c)(4)(A)(i) and (ii) seem to include only "transfers," not "in effect" transfers.
Jonathan G. Blattmachr and Mitchell M. Gans,
An Analysis of the TAMRA Changes to the Valuation Freeze Rules: Part II, 70 J. Tax'n 74
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