Charles T. McCord, Jr. and Mary S. McCord, Donors - Page 113

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          of receipt doctrines.3  Inexplicably, the majority ignore                   
          respondent’s primary contentions (i.e., that the substance over             
          form and violation of public policy doctrines are applicable) and           
          base their holding on an interpretation of the assignment                   
          agreement that respondent never raised.  In section I, I address            
          the majority’s holding.  In sections II and III, respectively, I            
          address respondent’s contentions relating to the substance over             
          form and violation of public policy doctrines.                              
          I.   The Majority’s Analysis of the Assignment Agreement Is                 
               Faulty                                                                 

               The majority begin by stating correctly that the “gift tax             
          is imposed on the value of what the donor transfers, not what the           
          donee receives.”  Majority op. p. 60.  Yet, they then proceed to            
          rely on a tortured analysis of the assignment agreement that is,            
          ostensibly, justification for shifting the determination of                 
          transfer tax consequences from the date of the transfer (i.e.,              
          January 12, 1996, the date of the assignment setting forth what             
          petitioners transferred) to March 1996 (i.e., the date of the               
          confirmation agreement).  The majority’s analysis of the                    
          assignment agreement requires that petitioners use the Court’s              
          valuation to determine the value of the transferred interests,              
          but the donees’ appraiser’s valuation to determine the percentage           


               3  The reasonable probability of receipt doctrine was not              
          one of respondent’s primary contentions, but it was referenced in           
          his opening brief.                                                          





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