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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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