Estate of Mary D. Maggos - Page 9




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               1.  Theft.                                                             
               The redemption constituted a theft under state law.                    
               * * *                                                                  
               2.  Fraud.                                                             
               No gift was made because Petitioner was swindled. * * *                
               3.  Mistake.                                                           
               Under Hawaii law, a party to a contract may rescind a                  
               contract on the basis of unilateral mistake. * * *                     
               4.  Bad Business Bargain.                                              
               A transaction entered into in the ordinary course of                   
               business will be considered as made for full and                       
               adequate consideration in money or money’s worth. * * *                
               Since the redemption was entered into in the ordinary                  
               course, there was no gift.  Moreover, the fact that a                  
               familial relationship existed between Petitioner and                   
               the buyer does not preclude the defense of a bad                       
               business bargain.  [Citations Omitted.]                                
          Petitioner’s memorandum concludes:                                          
                    Petitioner intends to prove that the redemption                   
               was a theft procured by fraud, that she lacked donative                
               intent and the transaction must be rescinded on the                    
               basis of mistake.  Alternatively, the redemption was a                 
               bad business bargain.  As a further alternative theory,                
               Petitioner will prove that the fair market value of the                
               stock was $3 million on the date of redemption.  Under                 
               either theory, no gift tax is owed.                                    
          Respondent’s Memorandum of Issues                                           
               Respondent’s memorandum sets out the following issues of               
          fact:                                                                       
                    1.  Whether the redemption of Petitioner’s 56.7%                  
               interest in Pepsi-Cola Alton Bottling, Inc. (PCAB) on                  
               May 1, 1987, for $3,000,000, payable by way of a 10-                   
               year promissory note (providing for monthly payments of                
               interest only at 8% for the entire 10-year term)                       
               constituted a taxable gift to her son, Nikita Maggos                   
               (Nikita), the owner of the remaining 43.3% of PCAB.                    
                              A.  Whether the redemption of                           
                    Petitioner’s PCAB stock at a stated redemption                    





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