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is the primary and personal liability of the donor, that the gift
is to be measured by the value of the property passing from the
donor, and that the tax applies regardless of the fact that the
identity of the donee may not be presently known or
ascertainable. See sec. 25.2511-2(a), Gift Tax Regs.2
The majority correctly states the formula for valuing
transfers of property:
If property is transferred for less than adequate and
full consideration, then the excess of the value of the
property transferred over the consideration received is
generally deemed a gift. See sec. 2512(b). The gift
is measured by the value of the property passing from
the donor, rather than by the property received by the
donee or upon the measure of enrichment to the donee.
See sec. 25.2511-2(a), Gift Tax Regs. [Majority op.
pp. 11-12.]
This is exactly the formula used in the cases on which the
majority relies for the proposition that a gift was made. See
Kincaid v. United States, 682 F.2d 1220 (5th Cir. 1982); Heringer
1(...continued)
resulting to the donee from the transfer, nor is it
conditioned upon ability to identify the donee at the
time of the transfer. On the contrary, the tax is a
primary and personal liability of the donor, is an
excise upon his act of making the transfer, is measured
by the value of the property passing from the donor,
and attaches regardless of the fact that the identity
of the donee may not then be known or ascertainable.
2See also Robinette v. Helvering, 318 U.S. 184 (1943), in
which the taxpayer argued that there could be no gift of a
remainder interest where the putative remaindermen (prospective
unborn children of the grantor) did not exist at the time of the
transfer. The Supreme Court rejected this argument stating that
the gift tax is a primary and personal liability of the donor
measured by the value of the property passing from the donor and
attaches regardless of the fact that the identity of the donee
may not be presently known or ascertainable.
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