Estate of H.A. True, Jr. - Page 39




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          in cases that preceded the enactment of section 2703.  See, e.g.,           
          Dorn v. United States, 828 F.2d 177 (3d Cir. 1987); Estate of               
          Littick v. Commissioner, 31 T.C. 181 (1958); Bensel v.                      
          Commissioner, 36 B.T.A. 246 (1937); Lauder II; Estate of                    
          Carpenter v. Commissioner, T.C. Memo. 1992-653.  Thus, although             
          this requirement was not explicitly set out in section 20.2031-             
          2(h), Estate Tax Regs. (as noted in the legislative history of              
          section 2703), the arm’s-length requirement has always been a               
          factor used by courts to decide whether a buy-sell agreement’s              
          price was determinative of value for estate tax purposes.                   
               Further, we do not believe that the heightened scrutiny                
          applied to intrafamily buy-sell agreements essentially creates a            
          presumption of testamentary purpose that can only be rebutted by            
          a showing that the agreement satisfied the arm’s-length                     
          requirement.  As we have stated many times, no one factor is                
          dispositive, and all circumstances must be evaluated to determine           
          whether a buy-sell agreement is intended to serve as a substitute           
          for a testamentary disposition.                                             
               Even if we were to treat the arm’s-length requirement as a             
          “super factor” in our analysis, an impermissible, retroactive               
          application of section 2703 would not result.  The arm’s-length             
          requirement played the same role in pre-section 2703 case law.              
          After surveying the cases that apply (either implicitly or                  
          explicitly) the section 20.2031-2(h), Estate Tax Regs.,                     
          requirement that a buy-sell agreement cannot be a testamentary              





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