Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 42




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               In summary, we are satisfied that HFLP was created                     
          principally as an alternate testamentary vehicle to the Trust.              
          Taking this feature in light of all that is discussed above, we             
          conclude that decedent retained enjoyment of the contributed                
          property within the meaning of section 2036(a).                             
               D.  Existence of Consideration                                         
               Having decided that decedent retained enjoyment of the                 
          transferred assets for purposes of section 2036(a), we turn to              
          the question whether the statute’s application may nonetheless be           
          avoided on the basis of the parenthetical exception for “a bona             
          fide sale for an adequate and full consideration in money or                
          money’s worth”.  The estate contends:                                       
                    The primary reason why I.R.C. �2036 does not apply                
               to Petitioner is that the Trust’s transfer of the                      
               Portfolio to the Partnership in exchange for a credit                  
               to its capital account for 99% of the fair market value                
               of the Portfolio assets and a 99% interest in profits                  
               and losses is a “bona fide sale for an adequate and                    
               full consideration in money or money’s worth.” * * *                   
               We, however, disagree on the ground that the estate’s                  
          position fails to take into account significant aspects of the              
          jurisprudence addressing this exclusionary language.  The phrase,           
          as used in a predecessor statute, was explained in early caselaw            
          of this Court, as follows:                                                  
               Accordingly, the exemption from tax is limited to those                
               transfers of property where the transferor or donor has                
               received benefit in full consideration in a genuine                    
               arm’s length transaction; and the exemption is not to                  
               be allowed in a case where there is only contractual                   






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