- 110 - 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 thePage: Previous 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 Next
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