The opinion
TaNNENWAld, J., concurring: I agree with the majority only because it appears that lone had such broad supplementary rights beyond her life estate that she was in effect the owner of the entire corpus of the trust. If this were not the case, I would be disposed to fractionalize the trust, both in terms of the interests transferred and the interest retained by the decedent, notwithstanding the contrary view of the Second Circuit Court of Appeals. Estate of Donald M. Nelson, 47 T.C. 279 (1966), remanded 396 F. 2d 519 (C.A. 2, 1968). The proportional approach urged by petitioner has considerable appeal but it seems to me that its application is precluded by the language of section 2043(a) and by the decided cases. Neither the passing reference in Helvering v. United States Trust Co., 111 F. 2d 576 (C.A. 2, 1940), nor the dissent in United States v. Past, 347 F. 2d 7, 15-18 (C.A. 9, 1965), articulate sufficient reason for a judicial redirection in favor of this approach. Indeed, the rationale of the dissent herein seems to be founded on fractionalization (which the majority discards on the basis of the facts of this case) rather than on an independent justification of the proportional approach under the language of section 2043(a). Moreover, I note that the proportional approach has found expression in the provision dealing with includability in the gross estate of joint interests in property. Sec. 2040. Since this section antedates section 2043(a), 1 it can be argued that Congress intended that the proportional approach not be used in cases involving less than full and adequate consideration.
The predecessor of sec. 2043(a) first appeared as sec. 302(1) of the Revenue Act of 1926 ( 44 Stat. 71 -72). The predecessor of sec. 2040 originates at least as far back as sec. 402(d) of the Revenue Act of 1921 ( 42 Stat. 278 ).