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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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