Estate of Albert Strangi - Page 27




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               WELLS, C.J., concurring:  Respectfully, although I concur in           
          the result reached by the majority in the instant case, I wish to           
          express my disagreement with the majority’s application of the              
          economic substance doctrine.  The majority rejects the alleged              
          business purposes underlying the formation of the disputed                  
          partnership but then concludes that the partnership "had                    
          sufficient substance to be recognized for tax purposes", majority           
          op. p. 16, because the partnership was validly formed under State           
          law, which altered the legal relationships between the decedent             
          and others.                                                                 
               I believe that the majority’s stated reasons for holding               
          that the partnership had substance misapplies the economic                  
          substance doctrine.  In cases such as ACM Pshp. v. Commissioner,            
          157 F.3d 231 (3d Cir. 1998), affg. in part and revg. in part on             
          another issue T.C. Memo. 1997-115, where the economic substance             
          doctrine is applied to deny income tax benefits, the doctrine is            
          applied regardless of the validity of the partnership under State           
          law.  Because the majority has rejected the alleged business                
          purposes underlying the formation of the partnership in issue in            
          the instant case, a proper application of the economic substance            
          doctrine, if it were to apply, would ignore the partnership and             
          disallow the discounts for minority interest and lack of                    
          marketability.                                                              







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