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v. Gore, supra, overstates the position of the Tenth Circuit
Court of Appeals.
First, we note the peculiar procedural posture of Brodrick
v. Gore. It was decided on motion for summary judgment and
relied on a prior, unappealed determination by a State court.
See Brodrick v. Gore, 224 F.2d at 894-896. Accordingly, because
there was no genuine issue as to any pleaded, material fact,
decision was rendered as a matter of law. See Fed. R. Civ. P.
56(c). Second, Brodrick v. Gore was decided before section
20.2031-2(h), Estate Tax Regs., which set out the bona fide
business arrangement and not a testamentary device requirements,
had been promulgated.46 Third, the Court of Appeals for the
Tenth Circuit has not revisited this question since the issuance
of section 20.2031-2(h), Estate Tax Regs. We therefore conclude
that Brodrick v. Gore is not “squarely in point” with the cases
at hand and that its holding is not dispositive under the Golsen
rule.
The taxpayers won in Brodrick v. Gore because (1) they
showed that the agreement was equally binding on the estate and
surviving partners, based on the facts found in the probate
proceeding, and (2) the Government had failed to plead that the
partnership agreement was tainted by bad faith or that the
46Brodrick v. Gore, 224 F.2d 892 (10th Cir. 1955), was
decided July 22, 1955, and sec. 20.2031-2(h), Estate Tax Regs.,
was promulgated June 23, 1958. See id.; sec. 20.2031-2(h),
Estate Tax Regs.
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