- 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 Next
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