Christine M. Hackl - Page 30




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          substantial economic benefit of the type necessary to qualify for           
          the annual exclusion.  While we are aware of petitioners’                   
          contentions and the parties’ rather conclusory stipulations that            
          Treeco was a legitimate operating business entity and that                  
          restrictive provisions in the Agreement are common in closely               
          held enterprises and in the timber industry, such circumstances             
          (whether or not true) do not alter the criteria for a present               
          interest or excuse the failure here to meet those criteria.                 
               As we consider potential benefits inuring to the donees from           
          their receipt of the Treeco units themselves, we find that the              
          terms of the Treeco Operating Agreement foreclosed the ability of           
          the donees presently to access any substantial economic or                  
          financial benefit that might be represented by the ownership                
          units.  For instance, while an ability on the part of a donee               
          unilaterally to withdraw his or her capital account might weigh             
          in favor of finding a present interest, here no such right                  
          existed.  According to the Agreement, capital contributions could           
          not be demanded or received by a member without the manager’s               
          consent.  Similarly, a member desiring to withdraw could only               
          offer his or her units for sale to the company; the manager was             
          then given exclusive authority to accept or reject the offer and            
          to negotiate terms.  Hence some contingency stood between any               
          individual member and his or her receipt from the company of                
          economic value for units held, either in the form of approval               






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