John Michael Wheeler, Independent of the Estate of Elmore K. Melton, Jr. v. United States

This ease involves the determination of the federal estate tax due from the estate of Elmore K. Melton, Jr. (Melton). On July 13, 1984, Melton, then age sixty, sold to his two adopted sons, John Wheeler and David Wheeler, the remainder interest in his ranch located in Bexar County, Texas. Melton retained a life estate in the ranch and used the actuarial tables set forth in the Treasury Regulations to determine the price to be paid by the Wheelers for the remainder interest. On May 25, 1991, Melton, then age sixty-seven, died. Melton’s federal estate tax return did not include any value for the ranch. The Internal Revenue Service (IRS) issued a notice of deficiency, claiming that the sale of the remainder interest in the ranch to the Wheelers for its actuarial value did not constitute adequate and full consideration, and that accordingly the fair market value of the full fee simple interest in the ranch, less the consideration paid by the sons, should have been included in Melton’s gross estate. The court below agreed and, following a line of cases stating that the sale of a remainder interest for less than the value of the full fee simple interest in the property does not constitute adequate consideration for the purposes of section2036(a) of the Internal Revenue Code, determined that Melton’s estate had been properly assessed an additional $320,831 in federal estate tax. We reverse.

Facts and Proceedings Below

I.

In the mid-1970s, Melton, who was bom April 16, 1924, and never married, adopted two children, John Wheeler (John), who was born in 1956, and David Wheeler (David), who was bom in 1958. Following their graduation from college, both sons-John in 1979, David in 1981-were employed by The Melton Company, a corporation of which Melton was then sole shareholder, president, arid chairman of the board.

From 1983 until his death in 1991, Melton engaged in a series of financial transactions with his sons that the government contends had significant estate tax ramifications. On May 19; 1983, Melton gave John and David each 195 shares of The Melton Company common stock, representing approximately 16.2 percent of the 1204 shares outstanding. On June 30, 1984, The Melton Company, pursuant to a recapitalization plan, converted each share of existing common stock into one share of voting stock and three shares of nonvoting stock, denominated Class A and Class B shares respectively. On July 13, 1984, some three months after he turned 60, Melton gave John and David each 223 shares of Class B stock of The Melton Company.

Also on July 13, 1984, Melton executed a warranty deed conveying to John and David his 376-acre ranch, located in Bexar County, Texas. The deed reserved to Melton a life estate in the ranch. 1 For many years prior to the sale, and until the time of his death, *752 Melton used the ranch as his personal residence. John and David paid for the remainder interest with a personal liability real estate lien note in the amount of $337,790.18, secured by a vendor’s lien expressly retained in the deed and additionally by a deed of trust on the ranch. ■ The deed and deed of trust were promptly recorded. The purchase price for the remainder interest in the ranch was determined by multiplying the sum of the appraised fair market value of the ranch’s fee simple interest, $1,314,200, plus $10,000, by 0.25509, the factor set forth in the appropriate actuarial table in the Treasury Regulations for valuing future interests in property where the measuring life was that of a person of Melton’s age. See Treas. Reg. §, 25.2512-5(A).

On February 12, 1985, the initial note, which bore interest at the rate of 7 percent and called for annual payments of at least $10,000 principal plus accrued interest, was revised to provide for monthly payments of $833.33 principal plus accrued interest, which remained at 7 percent. 2 On that date, John and David paid the amount due under the revised terms.

On October 18, 1985, Melton gave John and David each an additional 344 shares of Class B stock of The Melton Company.

In December 1986, Melton gave $10,000 each to John and David by forgiving that amount of each son’s indebtedness under the note. On December 23, 1986, John and David received bonuses from The Melton Company of $50,000 and $55,000, respectively. Each son used $35,000 of his bonus to reduce the principal owed on the note to Melton. John and David each paid income taxes on their bonus. On December 29, 1986, Melton assigned the note to The Melton Company in partial payment of an existing debt that he owed the company.

One year later, on December 24, 1987, Melton gave John and David each forty more shares of Class B stock of The Melton Company. On December 26, 1987, Melton gave each son another 106 shares of Class A stock and 299 shares of Class B stock.

On January 28, 1988, both John and David received a 1987 year-end bonus of $250,000 from The Melton Company. They each paid income taxes on their bonus. On January 29, 1988, Melton sold to John and David each 280 shares of Class B stock of The Melton Company. John and David paid the remaining balance due on the note the same day. Throughout the course of the indebtedness under the note, John and David had continued to make monthly payments. The Melton Company continued to make annual, year-end bonuses to both John and David long after the note was retired.

On December 25, 1989, nearly two years after the note had been paid in full, Melton gave John and David each thirty-five shares of Class B stock of The Melton Company. As a result of these gifts, on December 26, 1989, Melton owned fifty percent of the Class A stock of The Melton Company and no Class B stock. John and David each owned twenty-five percent of the Class A stock and fifty percent of the Class B stock. The ownership structure remained fixed at these levels until Melton’s death.

Melton died testate on May 25,1991, at the age of sixty-seven, more than six years after the sale of the remainder interest to the Wheelers and more than three years after the note had been paid in full. The cause of death was heart failure. Melton had suffered from coronary artery disease and arteriosclerosis for approximately ten years. The undisputed evidence, however, was that Melton’s death was not (and was not thought to be) imminent in July 1984 when he sold the remainder interest to the Wheelers (nor is there any evidence that it was ever imminent before 1991).

Melton’s will and codicil were admitted to probate and John was appointed the independent executor of the estate. John timely filed an estate tax return reporting a gross estate of $581,106, and an estate tax liability of $199,936 (which was tendered with the return). The gross estate, as reported on the return, did not include any amount for *753 the ranch, thus reflecting the estate’s position that Melton had no interest in the ranch at his death.

The IRS subsequently issued its “Report of Estate Tax Examination Changes,” taking the position that, under sections 2086(a) and 2043(a) of the Internal Revenue Code (IRC or Code), 3 the Melton estate should have included in the gross estate the difference between the date-of-death value of the ranch, $1,074,200, 4 and the consideration paid by the sons for the remainder interest, $337,790.18 (treated by the IRS as $338,000). Accordingly, the IRS determined that an additional $736,200 ($1,074,200 less $338,000) should have been included in the gross estate for the ranch. As a result, the IRS issued an estate tax notice of deficiency in the amount of $320,831. The Melton estate paid the asserted deficiency and filed a timely claim for refund. When the IRS did not allow the refund within the prescribed six months, the Melton estate commenced the instant action in the United States District Court for the Western District of Texas, San Antonio Division, seeking a refund of the additional estate tax assessed and paid, plus interest.

II.

Before the district court, the parties stipulated to the facts as set forth above and agreed to resolution of the issues by cross-motions for summary judgment. In its motion, the government contended that the series of transactions between Melton and his sons were part of a testamentary plan designed to shield most of the estate from taxation. The Melton estate argued that a sale of a remainder interest for its actuarial value comes -within the “bona fide sale for an adequate and full consideration” exception to section 2036(a) and therefore the ranch was properly excluded from the gross estate.

The magistrate judge issued a report recommending that the government’s motion be granted. The district court, without any discussion or explanation, overruled the estate’s objections to the magistrate judge’s report, accepted, approved, and adopted all the magistrate judge’s findings and conclusions, and entered judgment for the government.

The magistrate judge, observing that the “classic case” envisioned by section 2036(a) was “a purported gift with a retained life estate in the donor,” rejected the Melton estate’s contention that the sale of the remainder interest in the ranch for its actuarial value constituted a “bona fide sale for adequate and full consideration,” and opined that the date-of-death value of the ranch-less the consideration paid by the sons-must be included in the gross estate. The magistrate judge’s conclusion was premised on two principal bases. First, the magistrate judge found persuasive the United States Claims Court’s decision in Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed. Cir.1990), and embraced its determination that, for the purposes of section 2036(a), the value received by the decedent must be compared to.the value of the entire underlying property rather than the present value of the future interest transferred. Second, the magistrate judge concluded that the sale of the remainder interest was not a “bona fide sale” as envisioned by the exception to section 2036(a), noting that “[ajlthough death was not imminent in 1984, it is reasonable to assume that Melton contemplated his own death and the disposition of his estate at the time of the transfer of his homestead to his sons in July, 1984.” Accordingly, the magistrate judge, viewing the evidence “as a whole,” concluded that the series of transactions between Melton and his sons constituted “a single transaction intended to avoid the payment of estate taxes,” tainting the sale of the remainder interest in the ranch and precluding the transaction from being “bona fide” under section 2036(a). 5

*754 Discussion

I.

The case below was decided on cross-motions for summary judgment and on stipulated facts. A grant of summary judgment is subject to de novo review. Browning v. City of Odessa, 990 F.2d 842, 844 (5th Cir.1993). Where, as here, the essential facts are not in dispute, our review is limited to whether the government or the Melton estate is entitled to judgment as a matter of law. Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 444 (5th Cir.1991).

' Central to this case is section 2036(a) of the Code, which provides:

“The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (iexcept in case of a bona fide sale for an adequate and fall consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death-

(1) the possession or enjoyment of, or the right to the income from, the property, or

(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.” (Emphasis added). 6

The estate concedes that the fee simple value of the ranch would have to have been brought back into the estate had the remainder been transferred to the Wheelers without consideration or for an inadequate consideration. However, the Wheelers paid Melton for the remainder interest transferred an amount which the government concedes is equal to (indeed slightly in excess of) the then fair market value of the fee simple interest in the ranch multiplied by the fraction listed in the Treasury Regulations for valuing a remainder following an estate for the life of a person of Melton’s age. See 26 C.F.R. § 25.2512-5(A). The estate contends that accordingly under the parenthetical clause of section 2036(a) the ranch is not brought back into the estate, as Melton was paid full value for the transferred remainder. Indeed, there is no evidence to the contrary. The government, however, contends that because Melton was paid for the remainder interest an amount indisputably less than the value of the full fee interest, that therefore the parenthetical clause of section 2036(a) cannot apply, and hence the ranch must be brought back into the estate.

This case thus ultimately turns on whether the phrase “adequate and full consideration” as used in the italicized parenthetical clause of section 2036(a) is to be applied in reference to the value of the remainder interest transferred, as the estate contends, or in reference to the value of the full fee simple interest which the transferor had immediately before the transfer, as the government contends. We note that for this purpose the language of section 2036(a) makes no distinction between transfers of remainders following retained life estates and transfers of remainders following retained estates for a specified term of years (or other period ascertainable without reference to the transfer- or’s death) where the transferor dies before the end of the term. Similarly, no such distinction is made between transfers to natural objects of the transferor’s bounty and transfers to those who are strangers to the transferor.

That the proper construction of section 2036(a)’s “adequate and full consideration” *755 has presented taxpayers, the IRS, and the courts with such persistent conceptual difficulty can be explained, in large part, by the absence of a statutory definition of the phrase combined with the consistently competing interests of all tax litigants-the government and the taxpayer. The crux of the problem has been stated as follows:

“Because the actuarial value of a remainder interest is substantially less than the fair market value of the underlying property, the sale of a remainder interest for its actuarial value is viewed by many as allowing the taxpayer to transfer property to the remainderman for less consideration than is required in an outright .sale. Con- ■ sequently, the sale of a remainder interest for its actuarial value, although such value represents the fair market value of the remainder interest, raises the question of whether the seller has been adequately compensated for the transfer of the underlying property to the remainderman. If the actuarial value of the remainder interest does not represent adequate compensation for the transfer of the underlying property to the remainderman, the taxpayer may be subject to both the gift tax and the estate tax.... If the taxpayer holds the retained interest until death, section 2036(a) of the [Code] pulls the underlying property back into the taxpayer’s gross estate, unless the transfer is a bona fide sale for adequate and full consideration.” Martha W. Jordan, Sales of Remainder Interests: Reconciling Gradow v. United States and Section 2702, 14 Va. Tax Rev. 671, 673 (1995).

Both parties agreé that, for the purposes of the gift tax (section 2512 of the Code), consideration equal to the actuarial value of the remainder interest constitutes adequate consideration. See also Treas. Reg. § 25.2512-5(A). For estate tax purposes, however, authorities are split. Commentators have generally urged the same construction should apply, see, e.g., Jordan, supra; Steven A. Horowitz, Economic Reality In Estate Planning: The Case for Remainder Interest Sales, 73 Taxes 386 (1995); Jeffrey N. Pennell, Cases Addressing Sale of Remainder Wrongly Decided, 22 Est. Plan. 305 (1995), and the Third Circuit has held that “adequate and full consideration” under section 2036(a) is determined in reference to the value of the remainder interest transferred, not the value of the full fee simple interest in the underlying property. D'Ambrosio v. Commissioner, 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997). On the other hand, Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed.Cir.1990), and its faithful progeny Pittman v. United States, 878 F.Supp. 833 (E.D.N.C.1994), and D’Ambrosio v. Commissioner, 105 T.C. 252, 1995 WL 564078 (1995), rev’d 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997), have stated that a remainder interest must be sold for an amount equal to the value of the full fee simple interest in the underlying property in order to come within the parenthetical exception clause of section 2036(a). This Court has yet to address the precise issue.

II.

A. Gradow v. United States and the Widow’s Election Cases

As the government’s position rests principally on an analogy offered by the Claims Court in Gradow, a preliminary summary of the widow’s election mechanism in the community property context is appropriate.

In a community property state, a husband and wife generally each have an undivided, one-half interest in the property owned in common by virtue of their marital status, with each spouse having the power to dispose, by testamentary instrument, of his or her share of the community property. Under a widow’s election will, the decedent spouse purports to dispose of the entire community property, the surviving spouse being left with the choice of either taking under the scheme of the will or waiving any right under the will and taking his or her community share outright. One common widow’s election plan provides for the surviving spouse to in effect exchange a remainder interest in his or her community property share for an eq *756 uitable life estate in the decedent spouse’s community property share.

In Gradow, Mrs. Gradow, the surviving spouse, was put to a similar election. If she rejected the will, she was to receive only her share of the community property. Id. 11 Cl.Ct. at 809. If she chose instead to take ■under her husband’s will, she was required to transfer her share of the community property to a trust whose assets would consist of the community property of both spouses, with Mrs. Gradow receiving all the trust income for life and, upon her death, the trust corpus being distributed to the Gradows’ son. Id. Mrs. Gradow chose to take under her husband’s will and, upon her death, the executor of her estate did not include any of the trust assets within her gross estate. Id. The executor asserted that the life estate received by Mrs. Gradow was full and adequate consideration under section 2036(a) for the transfer of her community property share to the trust, but the IRS disagreed. Id. Before the Claims Court, the parties stipulated that the value of Mrs. Gradow’s share of the community property exceeded the actuarial value of an estate for her life in her husband’s share. Id. However, the estate contended that the value of the life estate in the husband’s share equaled or exceeded the value of the remainder interest in Mrs. Gra-dow’s share. The Claims Court did not clearly resolve that contention because it determined that the consideration flowing from Mrs. Gradow was “the entire value of the property she placed in the trust, i.6., her half of the community property,” and that thus the life estate was inadequate consideration, so the exception to section 2036(a) was unavailable. Id. at 810.

The court in Gradow concluded that the term “property” in section 2036(a) referred to the entirety of that part of the trust corpus attributable to Mrs. Gradow. Id. at 813. Therefore, according to the court, if the general rule of section 2036(a) were to apply, the date-of-death value of the property transferred to the trust corpus by Mrs. Gra-dow-rather than the zero date-of-death value of her life interest in that property-would be included in her gross estate. Id. Citing “[fundamental principles of grammar,” the court concluded that the bona fide sale exception must refer to adequate and full consideration for the property placed into the trust and not the remainder interest in that property. Id.

Fundamental principles of grammar aside, the Gradow court rested its conclusion equally on the underlying purpose of section 2036(a), observing that:

“The only way to preserve the integrity of the section, then, is to view the consideration moving from the surviving spouse as that property which is taken out of the gross estate. In the context of intra-family transactions which are plainly testamentary, it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Id. at 813-14.

In support of its equilibrium rule, the Gra-dow court cited precedent in the adequate and full consideration area, most notably United States v. Allen, 293 F.2d 916 (10th Cir.), cert. denied, 368 U.S. 944, 82 S.Ct. 378, 7 L.Ed.2d 340 (1961).

It is not our task to address the merits of Gradow’s analysis of how section 2036(a) operates in the widow’s election context but rather to determine whether the Gradow decision supports the construction urged by the government in the sale of a remainder context. We conclude that the widow election cases present factually distinct circumstances that preclude the wholesale importation of Gradow’s rationale into the present case.

As noted, a widow’s election mechanism generally involves an arrangement whereby the surviving spouse exchanges a remainder interest in her community property share for a life estate in that of her deceased spouse. Usually, as in Gradow, the interests are in trust. Necessarily, the receipt of an equitable life estate in the decedent-spouse’s community property share does little to offset the reduction in the surviving spouse’s gross estate caused by the transfer of her remainder interest. It is precisely this imbalance that the commentators cited in Gradow- and the “equilibrium rule” gleaned from United States v. Allen-recognized as the determinative factor in the widow’s election *757 context. Because a surviving spouse’s transfer of a remainder interest depletes the gross estate, there can be no “bona fide sale for an adequate and full consideration” unless the gross estate is augmented commensurately. See Charles L.B. Lowndes, Consideration and the Federal Estate and Gift taxes: Transfers for Partial Consideration, Relinquishment of Marital Rights, Family Annuities, the Widow’s Election, and Reciprocal Trusts, 35 Geo. Wash. L.Rev. 50, 66 (1966); Stanley M. Johanson, Revocable Trusts, Widow’s Election Wills, and Community Property: The Tax Problems, 47 Tex. L.Rev. 1247, 1283-84 (1969) (“But in the widow’s election situation, the interest the wife receives as a result of her election-transfer is a life estate in her husband’s community share-an interest which, by its nature, will not be taxed in the wife’s estate at her death. It appears that the wife’s estate is given a consideration offset for the receipt of an interest that did not augment her estate.”). Accordingly, we need not address the issue whether the value or income derived from a life estate in the decedent-spouse’s community property share can ever constitute adequate and full consideration. For our purposes it is enough to observe that, in most cases, the equitable life estate received by the surviving spouse will not sufficiently augment her gross estate to offset the depletion caused by the transfer of her remainder interest. 7 This depletion of *758 the gross estate prevents the operation of the adequate and full consideration exception to section 2036(a). 8 Had the court in Gradow limited its discussion of section 2036(a)’s adequate and full consideration exception to the widow’s election context, the nettlesome task of distinguishing its blanket rule of including the value of the full fee interest on the underlying property when a remainder interest is transferred might be somewhat easier. In dicta, however, and apparently in response to a hypothetical posed by the taxpayer, the Gradow court let loose a response that, to say the least, has since acquired a life of its own. The entire passage-and the source of much consternation-is as follows:

“Plaintiff argues that the defendant’s construction would gut the utility of the ‘bona fide sales’ exception and uses a hypothetical to illustrate his point. In the example a 40-year-old man contracts to put $100,000.00 into a trust, reserving the income for life but selling the remainder. Plaintiff points out that based on the seller’s life' expectancy, he might receive up to $30,000.00 for the remainder, but certainly no more. He argues that this demonstrates the unfairness of defendant insisting on consideration equal to the $100,000.00 put into trust before it would exempt the sale from § 2036(a).

There are a number of defects in plaintiffs hypothetical. First, the transaction is obviously not testamentary, unlike the actual circumstances here. In addition, plaintiff assumes his conclusion by focusing on the sale of the remainder interest as the only relevant transaction. Assuming it was not treated as a sham, the practical effect is a transfer of the entire $100,-000.00, not just a remainder. More importantly, however, if plaintiff is correct that one should be able, under the ‘bona fide sale’ exception to remove property from the gross estate by a sale of the remainder interest, the exception would swallow the rule. A young person could sell a remainder interest for a fraction of the property’s worth, enjoy the property for life, and then pass it along without estate or gift tax consequences.” Gradow, 11 Cl.Ct. at 815.

The Claims Court went on to conclude that “[t]he fond hope that a surviving spouse would take pains to invest, compound, and preserve inviolate all the life income from half of a trust, knowing that it would thereupon be taxed without his or her having received any lifetime benefit, is a slim basis for putting a different construction on § 2036(a) than the one heretofore consistently adopted.” Id. at 816.

One can only imagine the enthusiasm with which the IRS received the news that, at least in the view of ope court, it would not have to consider the time value of money when determining adequate and full consideration for a remainder interest. 9 Subsequent to the Gradow decision, the government has successfully used the above quoted language to justify inclusion in the gross *759 estate of the value of the full fee interest in the underlying property even where the transferor sold the remainder interest for its undisputed actuarial value. See Pittman v. United States, 878 F.Supp. 833 (E.D.N.C. 1994). See also D’Ambrosio v. Commissioner, 105 T.C. 252, 1995 WL 564078 (1995), rev’d, 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997).

Pittman (and the Tax Court’s decision' in D’Ambrosio) presents a conscientious estate planner with quite a conundrum. If the taxpayer sells a remainder interest for its actuarial value as calculated under the Treasury Regulations, but retains a life estate, the value of the full fee interest in the underlying property will be included in his gross estate and the transferor will incur substantial estate tax liability under section 2036(a). If the taxpayer chooses instead to follow Gra-dow, and is somehow able to find a willing purchaser of his remainder interest for the full fee-simple value of the underlying property, he will in fact avoid estate tax liability; section 2036(a) would not be triggered. The purchaser, however, having paid the fee-simple value for the remainder interest in the estate, will have paid more for the interest than it was worth. As the “adequate and full consideration” for a remainder interest under section 2512(b) is its actuarial value, the purchaser will have made a gift of the amount paid in excess of its actuarial value, thereby incurring gift tax liability. 10 Surely, in the words of Professor Gilmore, this “carr[ies] a good joke too far.” 11

B. United States v. Allen

The problem with the Gradow dicta is that, in its effort to escape the hypothetical posed by the taxpayer, it lost sight of the very principle the court was trying to apply; namely, the notion that adequate and full consideration under the exception to section 2036(a) requires only that the sale not deplete the gross estate. Gradow was correct in observing that “it is not unreasonable to require that, at a minimum, the sale accomplish an equilibrium for estate tax purposes.” Gradow, 11 Cl.Ct. at 813-14. Indeed, United States v. Allen, 293 F.2d 916, when properly construed, stands simply for that proposition.

In Allen, the decedent had created, and made a donative transfer of assets to, an irrevocable inter vivos trust, reserving a three-fifth interest in the income for life, her two children to receive the remainder in the entire corpus and the other two-fifths of the income. Id. at 916. Thereafter, being advised that her retention of the three-fifths of the life estate would result in the inclusion of three-fifths of the trust corpus in her gross estate at her death, the decedent sold her life estate to one of her children for a little over its actuarial value. She died shortly thereafter. Id. at 916-17. The trial court, although finding that the transfer of the life estate was made in contemplation of death, found that the consideration paid for it was “adequate and full,” thereby removing the property from the taxpayer’s estate. The Tenth Circuit reversed. Using the language that Gra-dow later quoted, the Tenth Circuit determined that the adequacy of the consideration paid for the life estate should be measured not against the interest received by the purchaser, but . rather by the amount that would prevent depletion of the transferor’s gross estate. Id. at 918 & n. 2.

“It does not seem plausible, however, that Congress intended to allow such an easy avoidance of the taxable incidence befalling reserved life estates. This result would allow a taxpayer to reap the benefits of property for his lifetime and, in contemplation of death, sell only the interest entitling him to the income, thereby removing all of the property which he has enjoyed from his gross estate. Giving the statute a reasonable interpretation, we cannot be *760 lieve this to be its intendment. It seems certain that in a situation like this, Congress meant the estate to include the corpus of the trust or, in its stead, an amount equal in value.” Id. at 918; but cf. 5 Boris I. Bittker & Lawrence Lokken, Federal Taxation of Income, Estates and Gifts ¶ 126.3.5, at 126-27 (1993) (noting that Allen may have “stretch[ed] the statutory language in a good cause”).

Crucial to a proper reading of Allen is the factual basis of the Tenth Circuit’s holding. The decedent, Maria Allen, had gratuitously transferred a remainder interest in an irrevocable trust to her two children, reserving a life estate in three-fifths for herself. Under section 811 of the 1939 Internal Revenue Code (the precursor to sections 2035 and 2036), this transaction retained the value of the full fee interest in three-fifths of the trust corpus in Maria Allen’s gross estate for estate tax purposes. For this very reason, Maria Allen, at age seventy-eight, subsequently sold to one of her children her three-fifths life estate for an amount ($140,000) slightly in excess of its actuarial value ($135,-000). The intended result of this sale was to remove the value of the entire fee interest in three-fifths of the trust corpus from Maria Allen’s gross estate; as long as she retained the life estate, section 811 would pull the date-of-death value of her three-fifths remainder interest ($900,000) into her gross estate. Therefore, unlike the hypothetical addressed in Gradow or the facts of the case here presented, the actuarial value of the transferred interest, the life estate, would not have prevented depletion of the gross estate in Allen. See Jordan, Sales of Remainder Interests, at 699 (“The conclusion in Allen that adequate consideration for the sale of a retained life estate equals the value of the trust corpus includible in the gross estate derives from the special punitive nature of section 2035 of the Code ..., and not from the proposition that the transfer of a split-interest removes the entire underlying property from the gross estate.”). 12

*761 C. In Pari Materia

As alluded to above, significant problems arise when “adequate and full consideration” is given one meaning under section 2512 and quite another for the purposes of section 2036(a). In a pair of companion cases in 1945, the Supreme Court set forth the general principle that, because the gift and estate taxes complement each other, the phrase “adequate and full consideration” must mean the same thing in both statutes. See Merrill v. Fahs, 324 U.S. 308, 309-11, 65 S.Ct. 655, 656, 89 L.Ed. 963 (1945) (‘“The gift tax was supplementary to the estate tax. The two are in pari materia and must be construed together.’”) (quoting Estate of Sanford v. Commissioner, 308 U.S. 39, 43-45, 60 S.Ct. 51, 56, 84 L.Ed. 20 (1939)); Commissioner v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958 (1945); Estate of Friedman v. Commissioner, 40 T.C. 714, 718-19, 1963 WL 1403 (1963) (“The phrase ‘an adequate and full consideration in money or money’s worth,’ common to both the estate and gift tax statutes here pertinent, is to be given an ‘identical construction’ in regard to each of them.”) (citing Fahs,