Christine M. Hackl - Page 32




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          purposes, bars alienation as a means for presently reaching                 
          economic value.  Transfers subject to the contingency of manager            
          approval cannot support a present interest characterization, and            
          the possibility of making sales in violation thereof, to a                  
          transferee who would then have no right to become a member or to            
          participate in the business, can hardly be seen as a sufficient             
          source of substantial economic benefit.  We therefore conclude              
          that receipt of the property itself, the Treeco units, did not              
          confer upon the donees use, possession, or enjoyment of property            
          within the meaning of section 2503(b).                                      
               C.  Application to Income From the Gifted Property                     
               Turning then to whether the gifts of Treeco units afforded             
          to the donees the right to use, possession, or enjoyment of                 
          income therefrom, we again answer this question in the negative.            
          As before, broadly applicable standards and reasoning derived               
          from both the trust cases and the cases involving gifts to a                
          partnership or corporate entity call for this result.                       
               In particular, this Court has distilled caselaw in these               
          areas into a three-part test for ascertaining whether rights to             
          income satisfy the criteria for a present interest under section            
          2503(b).  Calder v. Commissioner, 85 T.C. at 727-728.  The                  
          taxpayer must prove, based on surrounding circumstances and the             
          trust agreement:  “(1) That the trust will receive income, (2)              
          that some portion of that income will flow steadily to the                  






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