concurring: I have no doubt that in the type of situation involved herein the husband and wife both assume that, as long as they are happily married, they will continue to live in the family homestead together. But it is equally clear that often a husband puts the homestead in his wife’s name and considers — not without trepidation in some cases — that in so doing he has put himself at his wife’s mercy. Under such circumstances, I agree that respondent should not be allowed to conjure up the Genie “retained * * * possession or enjoyment” full-blown out of the Aladdin’s Lamp of the marital relationship.1
Congress has seen fit in section 2040 to deal specifically with real property rights arising out of joint tenancies and tenancies by the entireties. It is not without significance that tenancies in common are not included in the coverage of the section. If respondent’s contention herein were sustained, the result would be either that the entire value of residences owned as tenants in common could be swept into the husband’s estate or that ownership by the wife alone would be less favorably treated than ownership as a tenant in common. I do not believe that the broad general language of section 2036, utilized by Congress to deal with other situations, should be the mechanism for accomplishing by indirection what has been conspicuously omitted from the coverage of more precise provisions.2
To impose upon the taxpayer the burden of proving a negative (i.e., absence of an agreement or understanding) and to categorize a transaction herein as “obviously a substitute for a testamentary disposition” 3 is to infuse the estate tax law with the concept that the family should as a matter of law be treated as a unit. Congress has not seen fit to import such unitary doctrine into the tax law and I do not think we should become the chosen instrument for that purpose. Union Planters’ National Bank v. United States, 361 F. 2d 662 (C.A. 6, 1966). As Judge Learned Hand said in Kohnstamm v. Pedrick, 153 F. 2d 506, 510 (C.A. 2, 1943) : “It may be that for tax purposes the jural indissolubility of the family will in the end be restored to the position it occupied in archaic law; hut, so far that has not happened.”
Fay, /., agrees with this concurring opinion.1 note that respondent has only very recently awakened from his Rip Van Winkle slumber and renewed his attack on the instant type of transaction. Estate of Robert W. Wier, 17 T.C. 409 (1951), acq. 1952-1, C.B. 4, withdrawn and nonaeq. 1966-1 C.B. 4.
The relevancy of possible diminution of the transferee wife’s enjoyment and possession is questionable, even within the context of a determination whether there is an implied agreement or understanding. The presence or absence of diminution might have some significance in other situations, e.g., whether the annual value of the husband’s occupancy after the transfer constitutes a taxable gift by the wife.
This observation would be relevant if the issue herein was whether there was a gift in contemplation of death under sec. 2035.