Charles T. McCord, Jr. and Mary S. McCord, Donors - Page 25

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          that the charity actually will receive the use and benefit of the           
          gift, for which the deduction is claimed”), affd. 325 F.2d 934              
          (8th Cir. 1963).                                                            
               I would deny a charitable deduction for the increased value            
          by applying to this case a public policy doctrine that is similar           
          to the doctrine applied by the Courts in Commissioner v. Procter,           
          142 F.2d 824, 827 (4th Cir. 1944), revg. on other grounds a                 
          Memorandum Opinion of this Court, and Ward v. Commissioner,                 
          87 T.C. 78 (1986).  In Commissioner v. Procter, supra, the                  
          taxpayer transferred certain property interests to a trust                  
          benefiting his children.  The trust instrument provided that, if            
          a competent Federal court of last resort should find any part of            
          the transfer to be subject to gift tax, then that portion of the            
          property subject to such tax would not be considered to have been           
          transferred to the trust.  The Court of Appeals for the Fourth              
          Circuit declined to respect this adjustment provision.  The court           
          stated:                                                                     
               We do not think that the gift tax can be avoided by any                
               such device as this.  Taxpayer has made a present gift                 
               of a future interest in property.  He attempts to                      
               provide that, if a federal court of last resort shall                  
               hold the gift subject to gift tax, it shall be void as                 
               to such part of the property given as is subject to the                
               tax.  This is clearly a condition subsequent and void                  
               because contrary to public policy.  A contrary holding                 
               would mean that upon a decision that the gift was                      
               subject to tax, the court making such decision must                    
               hold it not a gift and therefore not subject to tax.                   
               Such holding, however, being made in a tax suit to                     
               which the donees of the property are not parties, would                
               not be binding upon them and they might later enforce                  







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