- 35 - Furthermore, the fact that the contemporaneous check register labels various disbursements to the Trust a “return of capital”, regardless of whether such are proper under the Agreement and/or should be otherwise classified, also supports the clear implication that Michael understood decedent’s capital could and would be made available to him if necessary. Additionally, Michael even liquidated an M.L. Stern & Co. money market account and renegotiated the Marsh note in order to obtain the requisite cash to enable the Trust to pay decedent’s estate taxes. These facets, in turn, provide strong evidence of an implied agreement under which decedent did not divest himself economically of the contributed assets. The estate also argues that the distributions to the Trust were consistent with the guaranteed payment obligation. Nonetheless, without regard once again to the veracity of this allegation, we find it of little import in our analysis. The record supports a conclusion that in making the payments Michael was motivated by concern not with meeting HFLP’s guaranteed payment obligation but rather with facilitating underlying partner expenditures. Michael testified as follows on this subject: Q Did you regularly pay the guaranteed payments to your father during 1994? A Payments were made, yes. Q Were they made regularly?Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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