Estate of George C. Blount, Deceased, Fred B. Aftergut, Executor - Page 36

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          intended to encompass subsequent shareholders and conclude that             
          the 1981 Agreement required the consent of subsequent                       
          shareholders (i.e., the ESOP) to any lifetime transfer of                   
               While we agree with the estate that a requirement of                   
          shareholder consent to lifetime transfers may be a sufficient               
          restriction to render a buy-sell agreement binding during life,20           
          see Estate of Weil v. Commissioner, 22 T.C. at 1275, we                     
          nevertheless do not agree that the Modified 1981 Agreement was              
          binding during decedent’s lifetime because decedent had the                 
          unilateral ability to amend it.                                             
               Where a decedent had the unilateral ability to change a buy-           
          sell agreement while alive, the agreement will not be considered            
          binding during his lifetime and, therefore, cannot control value            
          for Federal estate tax purposes.  Bommer Revocable Trust v.                 
          Commissioner, T.C. Memo. 1997-380; see also Estate of True v.               
          Commissioner, T.C. Memo. 2001-167.  In Bommer, the buy-sell                 

               19 We note that this interpretation is consistent with                 
          respondent’s assumption implicit in his alternate argument that             
          the consent requirement was not meaningful because decedent could           
          require the ESOP to give consent.                                           
               20 Respondent’s argument regarding decedent’s ability to               
          cause the ESOP to consent may overlook possible fiduciary                   
          obligations of the ESOP’s trustees.  Regardless, we need not                
          consider it further in light of our conclusion, on other grounds,           
          infra, that the Modified 1981 Agreement was not binding during              
          decedent’s lifetime.                                                        

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