dissenting:
Nearly 60 years ago, in words as true today as they were then, Judge Learned Hand wrote that “[a]ny one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.” Helvering v. Gregory, 69 F.2d 809, 810 (2d Cir.1934), aff'd, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). Thus, “when a taxpayer chooses to conduct his business in a certain form, ‘the tax collector may not *598deprive him of the incidental tax benefits flowing therefrom, unless it first be found to be but a fiction or a sham.’ ” W. Braun Co. v. Commissioner, 396 F.2d 264, 267 (2d Cir.1968) (citation omitted); see Newman v. Commissioner, 902 F.2d 159, 162-63 (2d Cir.1990); Rosenfeld v. Commissioner, 706 F.2d 1277, 1281 (2d Cir.1983).
The key facts in this case are not at issue. The decedent, an elderly woman, sold the house in order to minimize estate tax liabilities after her death. The Tax Code encourages such sales, granting a one time upward adjustment in basis for the sale of a principal residence by a person 55 years of age or older. 26 U.S.C. § 121. The decedent wished her son and daughter-in-law to become the owners of the property in question, and entered into a transaction whereby they purchased the property for a market price. She continued to occupy the house under a lease upon which she paid a monthly rent. The decedent took advantage of another tax benefit, the $10,000 per donee annual from the gift tax allowed during the years at issue, 26 U.S.C. § 2503, by forgiving $20,000 of the principal amount owed by the Maxwells at the time of the sale and each year thereafter until she died. On her death, the decedent forgave the remainder of the mortgage principal owed by the Maxwells.
There is no doubt that the decedent and the Maxwells structured the transaction at issue here to maximize tax benefits. However, it is far from clear that the transaction was a sham, and thus could be ignored for tax purposes by the IRS.
In erroneously upholding the Tax Court’s determination that for purposes of 26 U.S.C. § 2036(a): (1) the decedent retained possession or enjoyment of the property until her death; and (2) the sale was not bona fide and for adequate and full consideration the majority ignores the settled law of this Circuit and misconstrues Tax Court case law.
I. The Decedent’s “Possession” of the Property
The majority correctly states that, under § 2036(a)(1), an individual may retain possession or enjoyment of a property, following a legal transfer of ownership, pursuant to an express agreement or an implied understanding to that effect among the parties at the time of transfer. See Estate of Honigman v. Commissioner, 66 T.C. 1080, 1082, 1976 WL 3631 (1976). However, physical occupation of a property is not necessarily equivalent to possession or enjoyment of it. Rather, the statute looks to whether an individual gratuitously resides on a property following a sale until her death, thereby effectively retaining an ownership interest in the land. See Estate of Barlow v. Commissioner, 55 T.C. 666, 670, 1971 WL 2512 (1971); see also Estate of Kerdolff v. Commissioner, 57 T.C. 643, 1972 WL 2464 (1972); Estate of Nicol v. Commissioner, 56 T.C. 179, 182, 1971 WL 2642 (1971).
The majority makes much of the Tax Court’s factual finding that the Maxwells intended to permit the decedent to remain living on the property beyond the lease term, if she survived it. The majority also emphasizes that “[t]he decedent did, in fact, live at her residence until she died....” Majority Opinion at 594. However, I believe the crucial question under § 2036(a)(1) is not whether the Maxwells intended the decedent to remain on the property, or indeed whether she physically occupied the house until her death. Rather, it is whether she retained incidents of ownership of the land until her death.
In this case, the stipulated facts establish that the decedent remained on the land not as an owner, but as a tenant who fulfilled her duties under a lease by paying a rent of $1,800 per month. After the sale, the Max-wells assumed the burdens and costs of ownership, including insurance and property tax payments that were not off-set by the decedent’s rents.
Tax Court case law makes clear that a rent-paying tenant does not retain possession or ownership of property. In Estate of Barlow, the decedent parents gave farmland to their children who leased the property back. Focusing on the terms of the lease, the court held that the children were in possession of the property because of their right to receive rental payments:
*599One of the most valuable incidents of income-producing real estate is the rent which it yields. He who receives the rent in fact enjoys the property. The record contains no evidence whatever of a contemporaneous agreement, oral or written, expressed or implied, qualifying in any way the terms of the deed and lease.
55 T.C. at 671 (citation omitted). In this case, there is no evidence of an agreement qualifying the Maxwells’ right to receive rents under the lease. Indeed, the decedent made rental payments until her death. The majority seeks to distinguish Estate of Bar-lote on ground that the decedent’s rental payments approximated the Maxwells’ mortgage payments. However, the fact that the payments approximated each other does not obviate the economic significance of the lease, transforming it into a mere “facade.” It is reasonable to expect that a market rent would approximate, if not exceed, the carrying costs of the property.
The proper result here might be different if the Tax Court found that the decedent paid an inflated, above-market rent for the use of the property as a means of subsidizing the Maxwells’ mortgage payments. Estate of DuPont v. Commissioner, 63 T.C. 746, 766 n. 3, 1975 WL 3025 (1975). However, the Tax Court did not consider the market-rental value of the property — let alone make findings on the issue. The majority’s reliance on the Maxwells’ decision not to demand rent from the estate after the decedent’s death is misplaced. In Estate of Barloio, a delay in the payment of rents for four years did not obviate the economic significance of the lease. See 55 T.C. at 668.
The majority’s reasoning is also contrary to our treatment of rental payments in Ro-senfeld. In that case, a physician gave an ownership interest in his medical office property to an independent trust administered on behalf of his children. In connection with the transfer of the property, the physician retained the right to lease the property at a market rent for use as his office. The Commissioner disallowed the physician’s deductions of the rental payments as business expenses on the theory that the gift/leasebaek was a sham. As in the case at bar, the Commissioner argued that “nothing changed [following the transfer of the property] because [the taxpayer] was occupying the same premises as a lessee which he previously used as an owner.” 706 F.2d at 1282-83. We rejected the Commissioner’s argument as “disingenuous,” reasoning that the taxpayer “could have given the property to his children in trust and leased property from a third person for an amount equally fair and reasonable for his medical office. It is clear ... that a rent deduction would have been entirely proper in such a case.” Id. at 1283.
Our reasoning in Rosenfeld applies equally here. The economic reality of the situation would have been the same if the Maxwells had rented the property to a third party under similar lease terms, and utilized the rental income to satisfy the mortgages. Under Tax Court precedents and the law of this Circuit, the fact that the Maxwells rented the property to the decedent instead of a third party did not make the lease agreement a facade to mask the decedent’s continued ownership.
II. The “Sham” Purchase
The majority holds that the Maxwells proffered no consideration in connection with their purchase of the property from the decedent and, thus, that there was not a bona fide sale within the meaning of § 2036(a). However, in examining the economic results of the transaction, the majority misconstrues both Tax Court case law and the stipulated facts in the record.
The majority endorses the Tax Court’s conclusion that “the mortgage note here had no value at all [for purposes of § 2036(a) ] if there was no intention that it would ever be paid.” J.A. at 191-92; see Majority Opinion at 595-96. This construction of the statute is flatly contrary to prior Tax Court cases concerning similar transactions upon which the Maxwells apparently relied.
It is well established that the Tax Court is governed by the doctrine of stare decisis. See United States v. Byrum, 408 U.S. 125, 135, 92 S.Ct. 2382, 2390, 33 L.Ed.2d 238 (1972); Smith v. Commissioner, 926 F.2d 1470, 1479 (6th Cir.1991); Frantz v. Commissioner, 784 F.2d 119, 126 n. 4 (2d Cir.1986), *600cert. denied, 483 U.S. 1019, 107 S.Ct. 3262, 97 L.Ed.2d 761 (1987). Indeed, the doctrine applies with special force in the tax context, given the important reliance interests involved. See Byrum, 408 U.S. at 135, 92 S.Ct. at 2390.
In a line of cases beginning nearly 30 years ago, the Tax Court has stated that where “property is transferred in exchange for a valid, enforceable, and secured legal obligation to pay full value, there is no gift for Federal tax purposes.” Wilson v. Commissioner, 64 Tax Ct.Mem.Dec. (CCH) 583, 584 (1992); see Laughinhouse v. Commissioner, 80 T.C. 425, 431 n. 8, 1983 WL 14799 (1983); Estate of Kelley v. Commissioner, 63 T.C. 321, 323-24 (1974); Haygood v. Commissioner, 42 T.C. 936, 946 (1964). “This is trae even if the parties are related and the seller/obligee indicates an intent to forgive the indebtedness in the future.” Wilson, Tax Ct.Mem.Dee. (CCH) at 584 (emphasis added); see Laughinhouse v. Commissioner, 80 T.C. at 431 n. 8; Estate of Kelley, 63 T.C. at 323-24; Haygood, 42 T.C. at 946; see also Story v. Commissioner, 38 T.C. 936, 942, 1962 WL 1169 (1962) (the question is “not whether [the payee] intended to collect the debt, but whether [the payee] intended to make a gift of the amount when it was advanced or to create an obligation portions of which could be forgiven from time to time as gifts in the future”). While the Commissioner has consistently expressed disagreement with the reasoning of and refused to acquiesce in the Tax Court’s reasoning in these cases, see, e.g., Rev.Rul. 77-299, 1977-2 C.B. 343 (1977), the Commissioner’s disagreement does not impair them precedential value. Neither does the Commissioner’s nonacquies-cence affect the reasonableness of taxpayer reliance upon the Tax Court precedents.
The majority suggests that Haygood, Estate of Kelley and Wilson only stand for the proposition that an “intent to forgive notes in the future does not per se disqualify such notes from constituting valid indebtedness.” Majority Opinion at 597. However, I read these cases to state that the inquiry ends in the taxpayer’s favor upon a finding that the payee received a legally enforceable note or other instrument of indebtedness in return for a property.
In Haygood, the question before the Tax Court was whether a taxpayer transferred properties to her son for good and adequate consideration, and thus could avoid paying gift tax on the entire value of the properties. In return for the properties, the son gave his mother notes secured by the properties. The mother never intended to collect on the notes, and forgave payments on them as they came due. Indeed, unlike the Maxwells, the son in Haygood never made a single payment on the notes. However, the court did not focus upon the failure to enforce the payment obligations. Rather, in ruling for the taxpayer, the court relied on the validity of the obligations created by the notes, stating: “the evidence certainly supports the fact that the notes did create enforceable indebtedness even though petitioner had no intention of collecting the debts but did intend to forgive each payment as it became due.” 42 T.C. at 946.
The Tax Court upheld a similar transaction in Estate of Kelley by, once again, focusing upon the legal obligations created by the notes:
There is nothing in the trial record to support a finding that the notes and vendor’s liens, both in proper legal form and regular on their face, were not valid and enforceable. Nor is there any evidence of any agreement between petitioners and the donees qualifying the rights of petitioners under either the liens or the notes. There is no solid evidence indicating that petitioners did not purposely and consciously reserve all rights given to them under the liens and notes until they actually forgave the notes.
63 T.C. at 324-25 (emphasis added).
The purposes of the transactions at issue in Haygood and Estate of Kelley and the transaction in this case were the same: to remove properties from estates without paying taxes by selling them to close relatives in exchange for secured notes. And the notes at issue here were legally valid, like the notes at issue in the earlier Tax Court cases. Yet, in Haygood and Estate of Kelley, the Tax Court found such sales bona fide, while, in *601this case, the Tax Court found that the mortgage notes were without substance.
In attempting to distinguish Haygood and Estate of Kelley, the majority distorts them. For example, the majority suggests that the Tax Court’s finding that the decedent and the Maxwells had an “understanding” that the mortgage would eventually be forgiven at the time the property was transferred makes this case unique. However, the payee in Haygood also intended to forgive the notes executed in her favor from the time she received them. See 42 T.C. at 946. And, while the majority correctly states that the Estate of Kelley court never explicitly found that the payee had formulated the intent to forgive the notes on the day she received them, the majority fails to note that the Estate of Kelley opinion focussed upon the enforceability of the notes — the fact that they could be enforced — and quoted approvingly language in Haygood stating that an intent to forgive would not defeat the economic substance of a transaction. See 63 T.C. at 324-26.
Deal v. Commissioner, 29 T.C. 730, 1958 WL 1114 (1958), relied upon by majority, is inapposite. That case involved notes which were not secured by the property at issue, and in excess of one-half of the face value of the notes was forgiven within one week after they were executed. See id. at 736. Under these circumstances, the court found that the notes “were not given as part of the purchase price of the property which petitioner conveyed .... ” Id. at 737. By contrast, the Maxwells incurred an indebtedness secured by the property, and made regular payments on the notes for over two years.
The economic substance of the mortgages is established not only by the lack of evidence contradicting their validity and enforceability, but also by the actions of the parties. The majority states that the Max-wells were never called upon to make payments upon the notes. See Majority Opinion at 595-96. It is unclear whether the majority means that the Maxwells made no interest or no principal payments. In fact, they made both.
First, as I’ve discussed, the Maxwells made monthly interest payments on the notes until the decedent’s death. The unremarkable fact that the mortgage payments approximated the decedent’s rent, which the majority relies upon in considering whether the decedent retained possession of the property, does not in itself vitiate the economic substance of the rents.
Second, the decedent forgave annually $20,000 of the principal amounts the Max-wells owed on the mortgages, starting with an initial forgiveness at the time of the conveyance of the property to the Maxwells. The amounts forgiven corresponded to the decedent’s $10,000 per donee exclusion from the gift tax. See 26 U.S.C. § 2503. Thus, each time the decedent forgave a portion of the amounts owed on the mortgages, she effectively made a gift to the Maxwells by reducing their mortgage obligations. The substance of these transactions would have been exactly the same had the decedent made annual cash gifts totalling $20,000 to the Maxwells and the Maxwells then independently chose to use those or other monies to make principal payments on the mortgages. The fact that the decedent chose to benefit the Maxwells by reducing their obligations directly rather than by sending them a check and receiving another check in return does not make the Maxwells’ satisfaction of portions of the principal amounts any less genuine.
CONCLUSION
I am convinced that the Tax Court misconstrued its own precedents and disregarded our cases in concluding that the decedent retained possession and enjoyment of the property absent a determination that the rents were an above-market rate subsidy for the Maxwells’ mortgage payments. If this were the only error by the Tax Court, I would vacate its decision and remand for further findings on contemporaneous market rental rates.
However, I believe that the Tax Court committed reversible error in concluding that the sale was not bona fide and without adequate and full consideration. Were we writing on a clean slate, we might not construe § 2036(a) to uphold the validity for tax pur*602poses of a decedent’s sale of a property to a close family member with the intent to forgive mortgage obligations. However, Haygood, Estate of Kelley and their progeny make it plain that no legal significance attaches to the intent not to collect on such obligations. The decedent and the Maxwells reasonably relied upon these precedents, which the Tax Court cited approvingly as recently as last year. In collaborating with the Tax Court’s disregard of its own precedents, the majority endorses judicial arbitrariness and disregard of stare decisis.
I respectfully dissent.