Charles T. McCord, Jr. and Mary S. McCord, Donors - Page 90

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          30-year old daughter, but also on the failure of any issue of the           
          daughter to attain the age of 21 years, is disregarded as an                
          offset in determining the value of the gift; actuarial science              
          cannot establish the probability of whether the daughter would              
          marry and have children).                                                   
               Our conclusion is further buttressed by broader                        
          considerations of Federal gift tax law.  Under the “estate                  
          depletion” theory of the gift tax, it is the benefit to the donor           
          in money or money’s worth, rather than the detriment to the                 
          donee, that determines the existence and amount of any                      
          consideration offset (sale proceeds) in the context of an                   
          otherwise gratuitous transfer.  See Commissioner v. Wemyss, 324             
          U.S. 303, 307-308 (1945); 2 Paul, Federal Estate and Gift                   
          Taxation 1114-1115 (1942).  When a donee agrees to pay the gift             
          tax liability resulting from a gift, the benefit to the donor in            
          money or money’s worth is readily apparent and ascertainable,               
          since the donor is relieved of an immediate and definite                    
          liability to pay such tax.  If that donee further agrees to pay             
          the potential 2035 tax that may result from the gift, then any              
          benefit in money or money’s worth from the arrangement arguably             
          would accrue to the benefit of the donor’s estate (and the                  
          beneficiaries thereof) rather than the donor.  The donor in that            
          situation might receive peace of mind, but that is not the type             
          of tangible benefit required to invoke net gift principles.                 






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