- 42 - 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 contractualPage: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
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