J.C. Shepherd - Page 65




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          valuing the transfers under section 2511(a).  After all, the gift           
          tax was enacted to protect the estate tax, and the two taxes are            
          to be construed in pari materia.  See Merrill v. Fahs, 324 U.S.             
          308, 313 (1945).  The estate and gift taxes are different from an           
          inheritance tax, which focuses on what the individual donee-                
          beneficiaries receive; the estate and gift taxes are taxes whose            
          base is measured by the value of what passes from the transferor.           
               I would hold, contrary to the majority and the approach of             
          Estate of Bosca v. Commissioner, T.C. Memo. 1998-251,4 that the             
          gross value of what petitioner transferred in the case at hand is           
          to be measured by including the value of his entire interest in             
          the leased land.5  I would then value the net gifts by                      


               4 Contrary also to the Commissioner’s concession, in Rev.              
          Rul. 93-12, 1993-1 C.B. 202, that a donor’s simultaneous equal              
          gifts aggregating 100 percent of the stock of his wholly owned              
          corporation to his five children are to be valued for gift tax              
          purposes without regard to the donor’s control and the family               
          relationship of the donees.  The ruling is wrong because it                 
          focuses on what was received by the individual donees; what is              
          important is that the donor has divested himself of control.  The           
          cases relied upon by the ruling–-Estate of Bright v. United                 
          States, 658 F.2d 999 (5th Cir. 1981); Propstra v. United States,            
          680 F.2d 1248 (9th Cir. 1982); Estate of Andrews v. Commissioner,           
          79 T.C. 938 (1982); Estate of Lee v. Commissioner, 69 T.C. 860              
          (1978)--address an arguably different question:  whether for                
          estate tax purposes a decedent’s transfer at death of interests             
          in real property or shares of a family corporation should be                
          valued by aggregating them with interests in the same property or           
          shares already held by the decedent’s spouse or siblings.                   
               5 I acknowledge that my sense of the logic of the estate               
          depletion theory would require unitization of a donor’s same day            
          gifts of the stock of the same corporation in determining the               
          significance of parting with but not conveying control, contrary            
          to Estate of Heppenstall v. Commissioner, a Memorandum Opinion of           
          this Court dated Jan. 31, 1949, and arguably contrary to cases              
          that segregate same day gifts for blockage discount purposes,               
                                                             (continued...)           


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