Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 23

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               stock, but had retained voting control, he would not                   
               have retained “substantial present economic benefit,”                  
               * * *.  The Government points to the retention of two                  
               “benefits.”  The first of these, the power to liquidate                
               or merge, is not a present benefit; rather, it is a                    
               speculative and contingent benefit which may or may not                
               be realized. * * *                                                     
          United States v. Byrum, 408 U.S. at 132-133, 136-139, 143, 145,             
          149-150; fn. refs. omitted.                                                 
               The Supreme Court teaches us in United States v. Byrum, 408            
          U.S. 125 (1972), that section 2036(a)(1) (and section 2036(a)(2))           
          does not apply to a transfer by an individual to an irrevocable             
          trust of shares of stock in certain corporations in which the               
          transferor owned stock,17 where such ownership gave the transferor          
          the ability, inter alia, to liquidate or merge such corporations            
          and where the powers of the independent trustee of such trust               
          were subject to the following rights expressly reserved by the              
          transferor:  (1) To vote the shares of unlisted stock held in the           
          trust; (2) to disapprove the sale or transfer of any trust                  

               17After the Supreme Court decided United States v. Byrum,              
          408 U.S. 125 (1972), Congress enacted sec. 2036(b), which is                
          applicable to transfers made after June 22, 1976.  Sec. 2036(b)             
          expands the meaning of the phrase “retained * * * enjoyment of”             
          the transferred property for purposes of sec. 2036(a)(1).                   
          However, sec. 2036(b) is expressly limited to the retained right            
          to vote shares of stock of a controlled corporation, as defined             
          in sec. 2036(b)(2), and has no application to decedent’s transfer           
          to BFLP of his nonvoting WCB Holdings class B membership units.             
          Thus, the effect of Byrum on the instant case is unchanged by the           
          enactment of sec. 2036(b).  See Rev. Rul. 81-15, 1981-1 C.B. 457,           
          458, where the Internal Revenue Service, in reliance on the                 
          legislative history of sec. 2036(b), acknowledged that “the                 
          effect of Byrum * * * is not changed by the enactment of section            
          2036(b)” in the case of a transfer of nonvoting stock.                      




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