Washington Law Review


The federal estate tax has, at all times since its adoption in 1916, provided for the inclusion in the gross estate of the decedent of all transfers "intended to take effect in possession or enjoyment at or after death". The purpose of this provision, obviously, is to prevent avoidance of the estate tax through the medium of transfers legally inter vivos which operate in such a manner as to make them fairly satisfactory substitutes for the testamentary dispositions to which the estate tax primarily applies. In describing the types of transfers to be included within the ambit of the provision here examined, Congress used the words "intended to take effect in possession or enjoyment". No reference is made to time of transfer, to transfer of title, to vesting of the interest in the transferee, to the character of the interest or the control which the transferee retains over the thing transferred. Complete, unlimited ownership of chattels or realty carries with it rights of control and disposition, as well as of possession and enjoyment. By referring only to transfers in which possession or enjoyment is postponed until the transferor's death, it would seem that the statute contemplated the inclusion in the decedent transferor's gross estate of the value of things transferred inter vivos, which, in certain respects, may have been complete before death, as long as either one of the two statutorily designated incidents of ownership—possession or enjoyment—was postponed until death.

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