Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 48




                                       - 48 -                                         
          supra, and the present matter.  In the former situation, there is           
          at least the potential that intangibles stemming from a pooling             
          for joint enterprise might support a ruling of adequate and full            
          consideration.  We also note that section 25.2512-8, Gift Tax               
          Regs., specifies that transfers “made in the ordinary course of             
          business (a transaction which is bona fide, at arm’s length, and            
          free from any donative intent), will be considered as made for an           
          adequate and full consideration in money or money’s worth.”                 
               We therefore hold that where a transaction involves only the           
          genre of value “recycling” described above and does not appear to           
          be motivated primarily by legitimate business concerns, no                  
          transfer for consideration within the meaning of section 2036(a)            
          has taken place.  Hence, the exception provided in that statute             
          is inapplicable.  Furthermore, although section 2043 can entitle            
          taxpayers to an offset for partial consideration in cases where a           
          transfer is otherwise subject to section 2036, this section, too,           
          is inapplicable where, as here, there has been only a recycling             
          of value and not a transfer for consideration.                              
               E.  Conclusion                                                         
               We conclude that the property contributed by decedent to               
          HFLP is included in his gross estate pursuant to section 2036(a).           
          We further note that, given the foregoing conclusion, we need not           
          reach respondent’s additional argument for includability, which             
          argument is premised on disregard of the partnership for lack of            






Page:  Previous  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  Next

Last modified: May 25, 2011