- 94 -
FOLEY, J., concurring in part1 and dissenting in part:
Undaunted by the facts, well-established legal precedent, and
respondent’s failure to present sufficient evidence to establish
his determinations, the majority allow their olfaction to
displace sound legal reasoning and adherence to the rule of law.
The gift closed on January 12, 1996, and on that date petitioners
transferred to CFT all of petitioners’ assigned partnership
interests exceeding $7,044,933 (i.e., the amount exceeding the
$6,910,933 transferred to the sons and the trusts plus the
$134,000 transferred to the Symphony).
As the trial judge, I concluded that, on January 12, 1996,
petitioners transferred a $2,838,899 assignee interest to CFT.
On that date, the interest was accepted and received by CFT, and
not subject to a condition precedent or subsequent. Sec.
25.2522(c)-3(b)(1), Gift Tax Regs.; see also Commissioner v.
Sternberger’s Estate, 348 U.S. 187 (1955); Hamm v. Commissioner,
T.C. Memo. 1961-347, affd. 325 F.2d 934 (8th Cir. 1963).
Furthermore, I concluded that respondent fell woefully short of
meeting his burden2 regarding the applicability of the substance
over form, violation of public policy, and reasonable probability
1 I concur only in result with respect to secs. IV, V(E),
and VII(C) of the majority opinion.
2 The parties agree that respondent, pursuant to sec. 7491,
had the burden of proof.
Page: Previous 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 NextLast modified: May 25, 2011