Estate of Albert Strangi, Deceased, Rosalie Gulig, Independent Executrix - Page 38

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                    b.  Constraints upon rights to designate                          
               The Supreme Court in United States v. Byrum, supra, relied             
          upon several impediments to the exercise of powers held by                  
          Mr. Byrum in concluding that such powers did not warrant                    
          inclusion under section 2036(a)(2).  Here, the rights held by               
          decedent are of a different nature and were not accompanied by              
          comparable constraints.  In our view, the constraints alleged by            
          the estate are illusory.                                                    
               One circumstance highlighted by the Supreme Court was the              
          existence of an independent trustee with the sole authority                 
          ultimately to pay or withhold income from the trust.  Here, in              
          contrast, no similar layer of independence was interposed.                  
          Rather, decisions with respect to distributions were placed in              
          Stranco, of which decedent owned 47 percent and was the largest             
          shareholder.  All decisions ultimately were made by Mr. Gulig,              
          who continued to act as decedent’s attorney in fact.                        
               Another element stressed by the Supreme Court was the manner           
          in which the flow of funds allegedly under Mr. Byrum’s control              
          would be subject to economic and business realities consequent              
          upon the status of the relevant corporations as typical small               
          operating enterprises.  Earnings and dividends of a small                   
          operating company could be affected by, inter alia, changes in              
          products, in competition, or in industry regulation and outlook;            
          use of funds for replacement of plant and equipment or for growth           






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