As of yet the courts have not been faced squarely with the question of whether in the case of income-producing property, a retained "possession or enjoyment" is enough to tax it to one's estate under section 2036 of the Internal Revenue Code. Thus far there has either been no transfer of the property in question or the courts have found a retention of the "right to the income." It is inevitable, however, that the issue will one day have to be faced. The answer is not clear, but in looking at the reasons for the joint resolution that amended the statute in 1931, and the later Congressional interpretation of the statute in the conference report of 1949, the balance is on the side of recognizing a distinction between income-producing and non-income-producing property. On the other hand, the dicta propounded by the courts thus far seems to find no distinction between income-producing and non-income-producing property so far as the "possession or enjoyment" section of the statute is concerned.

I. The O’Malley Facts

II. Possible Effects of the O’Malley Interpretation

III. The History of “Right to Income”

IV. Judicial Reaction to “Right to Income”

V. Conclusion