- 146 - less than adequate and full consideration, the amount by which the value (as defined above) of property exchanged exceeds the value of consideration received is deemed to be a gift. See sec. 2512(b); Commissioner v. Wemyss, 324 U.S. 303, 306-307 (1945) (“The section taxing as gifts transfers that are not made for ‘adequate and full (money) consideration’ aims to reach those transfers which are withdrawn from the donor’s estate.”); sec. 25.2512-8, Gift Tax Regs. However, a sale, exchange, or other transfer of property made in the ordinary course of business, meaning a transaction that is bona fide, at arm’s length, and free from any donative intent, will be considered as made for adequate and full consideration. See Commissioner v. Wemyss, 324 U.S. at 306-307; sec. 25.2512-8, Gift Tax Regs. As previously stated in the estate tax context, transactions within a family group are subject to special scrutiny, such that there is a presumption that intrafamily transfers are gifts. See Harwood v. Commissioner, 82 T.C. 239, 259 (1984)(citing Estate of Reynolds v. Commissioner, 55 T.C. at 201), affd. without published opinion 786 F.2d 1174 (9th Cir. 1986). B. Buy-Sell Agreements Do Not Determine Value for Gift Tax Purposes It is well settled that restrictive agreements, such as the buy-sell agreements at issue in the cases at hand, generally doPage: Previous 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 Next
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