- 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”.Page: Previous 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 Next
Last modified: May 25, 2011