- 105 -
a present benefit at all; it was “a speculative and contingent
benefit which may or may not * * * [have been] realized.”14 Id.
at 150. There simply are no circumstances surrounding decedent’s
transfer of his WCB Holdings class B membership units to BFLP and
no subsequent use of such units by decedent from which an implied
agreement may be inferred that decedent retained the enjoyment of
such units. See Estate of Reichardt v. Commissioner, 114 T.C.
144, 151 (2000). Section 2036(a)(1) rejects the majority
opinion’s holding that decedent retained the enjoyment of the WCB
Holdings class B membership units that he transferred to BFLP.
The legal flaws in the majority opinion’s rationale are not
limited to its disregard of section 2036(a)(1), which, as
indicated above, the Supreme Court construed according to its
plain language. See United States v. Byrum, supra at 145, 149.
That rationale also ignores the principles under section 2036(a)
that the Supreme Court established in Byrum and that this Court
has applied in other cases. See, e.g., Estate of Cohen v.
Commissioner, 79 T.C. 1015 (1982); Estate of Gilman v.
14It is noteworthy that any speculative and contingent
future benefit (i.e., diversification of BFLP’s assets) that
decedent might have received from his 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 was substantially more tenuous than the
contingent and speculative future benefits that Mr. Byrum might
have received from his power to liquidate or merge the
corporations involved in United States v. Byrum, 408 U.S. 125
(1972).
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