26 U.S.C. § 2038

Revocable transfers

Read at: OLRCuscode.house.gov CornellLII GovInfogovinfo.gov JustiaTitle 26 CasesGoogle Scholar

(a) In generalThe value of the gross estate shall include the value of all property—(1) Transfers after June 22, 1936

To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished during the 3 year period ending on the date of the decedent’s death.

(2) Transfers on or before June 22, 1936

To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power during the 3 year period ending on the date of the decedent’s death. Except in the case of transfers made after June 22, 1936, no interest of the decedent of which he has made a transfer shall be included in the gross estate under paragraph (1) unless it is includible under this paragraph.

(b) Date of existence of power

For purposes of this section, the power to alter, amend, revoke, or terminate shall be considered to exist on the date of the decedent’s death even though the exercise of the power is subject to a precedent giving of notice or even though the alteration, amendment, revocation, or termination takes effect only on the expiration of a stated period after the exercise of the power, whether or not on or before the date of the decedent’s death notice has been given or the power has been exercised. In such cases proper adjustment shall be made representing the interests which would have been excluded from the power if the decedent had lived, and for such purpose, if the notice has not been given or the power has not been exercised on or before the date of his death, such notice shall be considered to have been given, or the power exercised, on the date of his death.

(Aug. 16, 1954, ch. 736, 68A Stat. 383; Pub. L. 86–141, § 1, Aug. 7, 1959, 73 Stat. 288; Pub. L. 87–834, § 18(a)(2)(F), Oct. 16, 1962, 76 Stat. 1052; Pub. L. 94–455, title XIX, § 1902(a)(3), title XX, § 2001(c)(1)(K), Oct. 4, 1976, 90 Stat. 1804, 1852.)Editorial NotesAmendments

1976—Subsec. (a)(1). Pub. L. 94–455, § 2001(c)(1)(K)(i), substituted “during the 3-year period ending on the date of the decedent’s death” for “in contemplation of decedent’s death”.

Subsec. (a)(2). Pub. L. 94–455, § 2001(c)(1)(K)(ii), substituted “during the 3-year period ending on the date of the decedent’s death” for “in contemplation of his death”.

Subsec. (c). Pub. L. 94–455, § 1902(a)(3), struck out subsec. (c) which covered the effect of a disability in certain cases by relating a mental disability to relinquish a power to a power, the relinquishment of which would be deemed not to be a transfer for purposes of chapter 4 of the Internal Revenue Code of 1939.

1962—Subsec. (a). Pub. L. 87–834 struck out provisions which excepted real property situated outside of the United States.

1959—Subsec. (c). Pub. L. 86–141 added subsec. (c).

Statutory Notes and Related SubsidiariesEffective Date of 1976 Amendment

Amendment by section 1902(a)(3) of Pub. L. 94–455 applicable to estates of decedents dying after Oct. 4, 1976, see section 1902(c)(1) of Pub. L. 94–455, set out as a note under section 2012 of this title.

Amendment by section 2001(c)(1)(K)(i), (ii) of Pub. L. 94–455 applicable to estates of decedents dying after Dec. 31, 1976 but not to transfers made before Jan. 1, 1977, see section 2001(d)(1) of Pub. L. 94–455, set out as a note under section 2001 of this title.

Effective Date of 1962 Amendment

Amendment by Pub. L. 87–834 applicable to estates of decedents dying after Oct. 16, 1962, except as otherwise provided, see section 18(b) of Pub. L. 87–834, set out as a note under section 2031 of this title.

Effective Date of 1959 Amendment

Pub. L. 86–141, § 2, Aug. 7, 1959, 73 Stat. 289, provided that: “The amendment made by the first section of this Act [amending this section] shall apply only with respect to estates of decedents dying after August 16, 1954. No interest shall be allowed or paid on any overpayment resulting from the application of the amendment made by the first section of this Act with respect to any payment made before the date of the enactment of this Act [Aug. 7, 1959].”

Notes of Decisions

Cited in 37 cases (3 in the last 5 years), 1958–2026 · leading case: United States v. Est. of Grace, 395 U.S. 316 (1969).

Sort: Relevance Newest Treatment

United States v. Est. of Grace, 395 U.S. 316 (1969). · cites it 2× “[*] The relevant provision of the 1939 Internal Revenue Code (§ 811 (d) (2)) is practically identical with the corresponding provision of the 1954 Code ( 26 U. S. C. § 2038 (a) (2)). Each provides that a decedent's gross estate shall include property "To the extent of any…”

Est. of Stewart v. Comm'r, 617 F.3d 148 (2d Cir. 2010). · cites it 2× “§ 2038 when a reciprocal trust arrangement "leaves the settlors in approximately the same economic position as they would have been in had they created trusts naming themselves as life beneficiaries"); Estate of Wineman, 79 T.C.M. (CCH) at 2194 (noting that even payment of all…”

United States v. Johnson, 224 F. Supp. 3d 1220 (D. Utah 2016). · cites it 3× “§ 2036 or 26 U.S.C. § 2038 , because the Decedent retained full beneficial ownership of all Trust assets during her lifetime and there was no transfer to any other Trust beneficiary until the time of her death, (Def.”

Old Colony Trust Co. v. United States, 300 F. Supp. 1032 (D. Mass. 1969). · cites it 5× “§ 2036 and 26 U.S.C.A. § 2038 . Plaintiff’s testator, John H.”

Amanda York Beaty & Nancie York Gunter v. United States, 937 F.2d 288 (6th Cir. 1991). “§ 2037 (transfers that take effect at death); 26 U.S.C. § 2038 (revocable transfers); 26 U.”

Mildred E. Walter, Executors De Bonis Non of the Est. of Gertrude C. Walter, Deceased v. United States, 341 F.2d 182 (6th Cir. 1965). · cites it 2× “As originally filed the case involved three questions: (1) Was the trust a taxable revocable transfer under Section 2038 of the Internal Revenue Code of 1954, 26 U.S.C. § 2038 ? (2) If so, what is the correct measure of the tax? (3) In the alternative, was the trust taxable as a…”

Est. of Helen E. Bowgren, Deceased, Warren D. Bowgren v. Comm'r of Internal Revenue, 105 F.3d 1156 (7th Cir. 1997). “— To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his…”

Townsend v. United States, 889 F. Supp. 369 (D. Neb. 1995). · cites it 2× “26 U.S.C. § 2038 (a)(1). Defendant argues that because the power of attorney instrument did not explicitly authorize George Townsend to make gifts on behalf of his principal, Merl Townsend retained the power to revoke the gifts made by his attorney in fact.”

Old Colony Trust Co., of the Est. of John H. Cunningham v. United States, 423 F.2d 601 (1st Cir. 1970). “§ 2036 (a) (2), and that the settlor-trustee at the date of his dealth possessed a power “to alter, amend, revoke, or terminate” within the meaning of section 2038(a) (1) ( 26 U.S.C. § 2038 (a) (1)). If State Street Trust Co.”

Est. of Swanson v. United States, 10 F. App'x 833 (Fed. Cir. 2001). “Stubblefield was therefore includible in the gross estate under 26 U.S.C. § 2038 (a)(1). The estate filed an action in the United States Court of Federal Claims seeking a refund of the claimed amount.”

Richard H. Black, Deceased, Phyllis M. Black, Pers. Rep. v. Comm'r of Internal Revenue, 765 F.2d 862 (9th Cir. 1985). “” 26 U.S.C. § 2038 . Homor permits the government to disregard a revocable transfer of joint tenancy property to a trust because section 2038 would prevent an individual property owner from avoiding the estate tax by making a similar transfer.”

White v. United States, 881 F. Supp. 688 (D. Mass. 1995). · cites it 2× “The remaining issue is whether the 1983, 1986 and 1987 missed distributions are subject to the three year rule of 26 U.S.C. § 2038 (a)(1). 7 As explained in Estate of Jalkut, 96 T.”

Show all 37 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.