Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 22

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               enforceable “right” specified by the statute.                          
               Retention of corporate control (through the right to                   
               vote the shares) is said to be “tantamount to the power                
               to accumulate income” in the trust * * *.  The                         
               Government goes on to assert that “[t]hrough exercise                  
               of that retained power, [Byrum] could increase or                      
               decrease corporate dividends * * * and thereby shift or                
               defer the beneficial enjoyment of trust income.”  This                 
               approach seems to us not only to depart from the                       
               specific statutory language, but also to misconceive                   
               the realities of corporate life.                                       
                  *       *       *       *       *       *       *                   
                    We conclude that Byrum did not have an                            
               unconstrained de facto power to regulate the flow of                   
               dividends to the trust, much less the “right” to                       
               designate who was to enjoy the income from trust                       
               property.  His ability to affect, but not control,                     
               trust income, was a qualitatively different power from                 
               that of the settlor in [United States v.] O’Malley [383                
               U.S. 627 (1966)], who had a specific and enforceable                   
               right [set forth in the controlling trust instrument]                  
               to control the income paid to the beneficiaries.  Even                 
               had Byrum managed to flood the trust with income, he                   
               had no way of compelling the trustee to pay it out                     
               rather than accumulate it.  Nor could he prevent the                   
               trustee from making payments from other trust assets                   
               * * *.                                                                 
                  *       *       *       *       *       *       *                   
                    It is well settled that the terms “enjoy” and                     
               “enjoyment,” as used in various estate tax statutes,                   
               “are not terms of art, but connote substantial present                 
               economic benefit rather than technical vesting of title                
               or estates.” * * *                                                     
                  *       *       *       *       *       *       *                   
                    * * * The statutory language [of section                          
               2036(a)(1)] 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.                

                    Even if Byrum had transferred a majority of the                   





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