- 31 -
that decedent could have had the assets distributed to himself to
complete the sale.
The majority, however, holds that, because the formalities
were followed and SFLP was validly formed under State law, the
partnership had sufficient substance to be recognized for tax
purposes. The majority then values decedent's partnership
interest as if the restrictions in the written partnership
agreement were actually binding on the partners. The majority
states, "The actual control exercised by Mr. Gulig, combined with
the 99-percent limited partnership interest in SFLP and the 47-
percent interest in Stranco, suggest the possibility of including
the property transferred to the partnership in decedent's estate
under section 2036." Majority op. p. 15. It seems incongruous
that for purposes of section 2036 this Court could look to the
actual control decedent exercised over the assets of the
partnership, but for purposes of determining the appropriate
discounts for valuing decedent's interest in the partnership this
Court is limited to the written partnership agreement.
Assuming, arguendo, that the partnership must be recognized
for Federal estate tax purposes, I would value the interest under
the agreement that existed in fact, rather than under the written
partnership agreement that had no relationship to the reality of
decedent's ownership and control of the assets contributed to the
partnership.
Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: May 25, 2011