- 104 -
Empak stock owned by WCB Holdings and to cause WCB Holdings to
redeem the WCB Holdings class B membership units owned by BFLP
does not logically lead to any of the foregoing conclusions. Nor
does any such alleged ability logically lead to the majority
opinion’s holding that “an implied agreement existed that allowed
decedent to retain the enjoyment of the property held by BFLP.”
Majority op. p. 59.
The majority opinion’s rationale is also legally flawed.
The language of section 2036(a)(1)13 “plainly contemplates
retention of an attribute of the property transferred--such as a
right to income, use of the property itself, or a power of
appointment with respect either to income or principal.” United
States v. Byrum, 408 U.S. at 149. Moreover, the term “enjoyment”
used in section 2036(a)(1) is not a term or art; it “connote[s]
substantial present economic benefit”. Id. at 145. Decedent did
not retain any attribute of the WCB Holdings class B membership
units that he transferred to BFLP. Nor was decedent’s alleged
ability to cause Empak to redeem the Empak stock owned by WCB
Holdings and to cause WCB Holdings to redeem the WCB Holdings
class B membership units owned by BFLP a substantial present
economic benefit of such units. Any such alleged ability was not
13In order for sec. 2036(a)(1) to apply, decedent must have,
inter alia, made a transfer of property under which he “retained
for his life * * * (1) the possession or enjoyment of, or the
right to the income from, the property”.
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