- 29 -
A voluntarily executed transfer of property by one to
another, without any consideration or compensation therefor, is
not necessarily a gift within the meaning of section 274(b). See
Commissioner v. Duberstein, 363 U.S. 278, 285 (1960); Olk v.
United States, 536 F.2d 876, 877-878 (9th Cir. 1976). If the
transfer “proceeds primarily from ‘the constraining force of any
moral or legal duty,’ or from ‘the incentive of anticipated
benefit’ of an economic nature, * * * it is not a gift.”
Commissioner v. Duberstein, supra at 285 (citations omitted). A
gift, in the statutory sense, “proceeds from a ‘detached and
disinterested generosity’ * * * ‘out of affection, respect,
admiration, charity or like impulses.’” Commissioner v.
Duberstein, supra at 285 (citations omitted); see also Olk v.
United States, supra. The intention of the payor controls
whether the payment is characterized as a gift. See Commissioner
v. Duberstein, supra at 286; Bogardus v. Commissioner, 302 U.S.
34, 43 (1937). The question of whether a payment is a gift is a
question of fact to be determined on the basis of the facts of
each case. See Commissioner v. Duberstein, supra at 290; Woody
v. United States, 368 F.2d 668, 670 (9th Cir. 1966).
In his direct testimony at trial, Mr. Dobbe was asked: “And
so when you purchased these golf clubs, was it in the form of
compensation to encourage Mr. Heemskerk to continue to do a good
job?” Mr. Dobbe responded: “I would say incentive to continue
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: May 25, 2011