Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 15

                                       - 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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