Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 20

                                       - 109 -                                        
          including those set forth in the following excerpt from the                 
          Supreme Court’s rejection of the Government’s arguments in that             
          case:                                                                       
                    At the outset we observe that this Court has never                
               held that trust property must be included in a                         
               settlor’s gross estate solely because the settlor                      
               retained the power to manage trust assets. * * *                       
                  *       *       *       *       *       *       *                   
                    * * * The term “right,” certainly when used in a                  
               tax statute, must be given its normal and customary                    
               meaning.  It connotes an ascertainable and legally                     
               enforceable power * * *.  Here, the right ascribed to                  
               Byrum was the power to use his majority position and                   
               influence over the corporate directors to “regulate the                
               flow of dividends” to the trust.  That “right” was                     
               neither ascertainable nor legally enforceable and hence                
               was not a right in any normal sense of that term.                      
                    Byrum did retain the legal right to vote shares                   
               held by the trust and to veto investments and                          
               reinvestments.  But the corporate trustee alone, not                   
               Byrum, had the right to pay out or withhold income and                 
               thereby to designate who among the beneficiaries                       
               enjoyed such income.  Whatever power Byrum may have                    
               possessed with respect to the flow of income into the                  
               trust was derived not from an enforceable legal right                  
               specified in the trust instrument, but from the fact                   
               that he could elect a majority of the directors of the                 
               three corporations.  The power to elect the directors                  
               conferred no legal right to command them to pay or not                 
               to pay dividends.  A majority shareholder has a                        
               fiduciary duty not to misuse his power by promoting his                
               personal interests at the expense of corporate                         
               interests.  Moreover, the directors also have a                        
               fiduciary duty to promote the interests of the                         
               corporation. * * * their [the corporate directors’]                    
               responsibilities were to all stockholders and were                     
               enforceable according to legal standards entirely                      
               unrelated to the needs of the trust or to Byrum’s                      
               desires with respect thereto.                                          
                    The Government seeks to equate the de facto                       
               position of a controlling stockholder with the legally                 





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