Bernardus A. P. Dobbe and Klazina W. Dobbe - Page 29




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               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             






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