dissenting: In my view, the facts in these cases bring them within section 20.2053-7, Estate Tax Regs., so as to limit the includable value of the respective properties to the equity of redemption thereof. In Commissioner v. Wragg, 141 F.2d 638 (1st Cir. 1944), the Circuit Court pointedly observed that the Commissioner may not argue in situations analogous to the one before the Court "that the deductions taken cannot be allowed because the consideration for the claims against the estate did not flow to the decedent.”
The majority perceives an unfair abuse situation were the above regulation to be applied according to its actual terms. I perceive a countervailing unfair result where the full fair market value of property is required to be included in the gross estate by virtue of section 2036 without any recognition being given to the existence of an encumbrance, for whatever reason placed upon the property, which indisputably affects the value of that property. I feel the Court will totally lose its sense of direction in this area if it persists in making ad hoc exceptions to the clear effect of the regulation. In my judgment, Judge Whitaker, in his dissenting opinion, has correctly analyzed the law as applied to the facts of this case.
Whitaker and Cohen, JJ, agree with this dissent.