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variable and imprecise to constitute the basis per se
for imposing tax liability under � 2036(a). * * *
Id. at 137 n.10 and 138 n.13.
The majority opinion’s reliance on a “control” standard in
applying section 2036(a)(1) flies in the face of the Supreme
Court’s rejection of such a standard.15 Id. The “control”
standard in the majority opinion’s rationale, like the
Government’s “control” standard in Byrum, is “too variable and
imprecise to constitute the basis per se”, id. at 138 n.13, in
applying section 2036(a)(1).16
Not only does the majority opinion’s rationale fly in the
face of the Supreme Court’s rejection in United States v. Byrum,
408 U.S. 125, of a “control” standard under section 2036(a), that
rationale also flies in the face of other principles under
section 2036(a) that the Supreme Court established in Byrum,
15Under the majority opinion’s “control” standard, because
of 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, “dece-
dent controlled whether BFLP could transform its * * * class B
WCB Holdings membership units * * * into a liquid asset * * *[,]
exercised practical control over BFLP and * * * retained the
right to control the units transferred to BFLP”, and his transfer
to BFLP of his WCB Holdings class B membership units “did not
alter his control” of such units. Majority op. pp. 57-59.
Consequently, according to the majority opinion, “an implied
agreement existed that allowed decedent to retain the enjoyment
of the property held by BFLP.” Majority op. p. 59.
16As discussed above, we do not even know, because the
majority opinion never tells us, what it intends by the terms
“control” and “controlled” that appear in the majority opinion’s
rationale.
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