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question of whether a charitable donee will ever receive gifted
property; Commissioner v. Procter, 142 F.2d 824 (4th Cir. 1944),
applying public policy principles to the question of whether
abusive valuation or adjustment clauses are to be respected.
With regard to Judge Foley’s criticism of these doctrines,
see dissenting op. pp. 94-95, 107-108, I would suggest that the
reasonable probability and public policy doctrines should not be
confined to stale factual situations involved in old cases. To
the contrary, these doctrines live and breathe and have a life
that should be broad and flexible enough to apply to contemporary
and overly aggressive gift and estate tax planning (such as that
involved herein)--particularly where charity is involved.
With regard further to the nature or extent of the gift to
charity involved herein, I would emphasize that not “all” of
petitioners’ MIL partnership interest was transferred.
Respondent argues that “all” of petitioners’ MIL partnership
interest was transferred, but petitioners contend otherwise, and
the majority opinion concludes that something less than all of
petitioners’ interest in the MIL partnership was transferred
(namely, only an “assignee” interest was transferred). See
majority op. pp. 19-24. In light of the majority’s conclusion in
that regard, had respondent argued in the alternative that the
“partial interest” gift rules of section 2522(c)(2) and section
25.2522(c)-3(c), Gift Tax Regs., were applicable to petitioners’
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