CGF Industries, Inc. and Subsidiaries - Page 40




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          as he called it, was to have the corporation distribute dividends           
          so that its shareholders would be regarded as independently                 
          investing the after-tax proceeds in the CGF and Lincoln Partner-            
          ships.                                                                      
               The court in Kornfeld v. Commissioner, 137 F.3d 1231 (10th             
          Cir. 1998), addressed this very point.  In that case, where the             
          remaindermen had no legal obligation to use the funds provided by           
          the taxpayer to acquire their interests,18 the court did not                
          regard Gordon v. Commissioner, 85 T.C. 309 (1985), as distin-               
          guishable.  The court noted that Mr. Kornfeld's intention in                
          making the gifts was to enable the donees to purchase the                   
          remainder interests.  And as the Court of Appeals for the Tenth             
          Circuit pointed out:  "there is no reason these remaindermen                
          would question making the investments when taxpayer was giving              
          them the funds to make their purchases."  Kornfeld v. Commis-               
          sioner, supra at 1236.  Similarly, in Gordon v. Commissioner,               
          supra, the Court emphasized the parties' actual intent when it              
          addressed this argument in a footnote:                                      
                    We reject petitioners' argument that the fact that                
               the trust was free to refuse to participate in any or                  
               all of the joint purchase transactions indicates that                  
               the trust's role as purchaser had substance.  For                      
               purposes of this question, the power to refuse is a                    
               fact to consider * * * but is of minimal significance                  

               18In Kornfeld v. Commissioner, 137 F.3d 1231 (10th Cir.                
          1998), gift tax returns were filed in respect of all the funds              
          provided by Mr. Kornfeld to his daughters and secretary, whereas            
          in Gordon v. Commissioner, 85 T.C. 309 (1985), most of the                  
          transfers of funds by Dr. Gordon to the family trust (holder of             
          the remainder interests) were not reflected in any gift tax                 
          returns.                                                                    

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