- 112 -
assets, including the shares transferred to the trust; (3) to
approve investments and reinvestments; and (4) to remove the
trustee and to designate another corporate trustee to serve as
successor trustee. Id. at 126-127.
A fortiori, under the principles that the Supreme Court
established in United States v. Byrum, supra, even if in the
instant case decedent had the ability to cause Empak to redeem
the Empak stock owned by WCB Holdings and to cause WCB Holdings
to redeem the WCB Holdings class B membership units owned by
BFLP, any such ability does not demonstrate, and did not result
in, decedent’s retention of the enjoyment of the WCB Holdings
class B membership units that he transferred to BFLP within the
meaning of section 2036(a)(1).18 In reaching a contrary holding,
18Although there are factual differences between United
States v. Byrum, supra, and the instant case, those differences
have no significance for purposes of determining whether sec.
2036(a)(1) applies to decedent’s transfer to BFLP of his WCB
Holdings class B membership units. In fact, many of those
differences strengthen the estate’s position in the instant case.
For example, in Byrum, Mr. Byrum expressly reserved the rights,
inter alia, to disapprove the sale or transfer of any trust
assets including the shares transferred to the trust, to approve
investments and reinvestments of the trust, and to remove the
trustee and designate another corporate trustee to serve as
successor trustee. Id. at 127. In contrast, decedent in the
instant case reserved no such rights, or any other rights, with
respect to BFLP, BFLP’s assets, or ISA Trust, BFLP’s general
partner.
Moreover, any suggestion that the principles announced by
the Supreme Court in United States v. Byrum, supra, are limited
to trusts, and do not apply to other types of entities such as
limited partnerships like BFLP, is unfounded and disregards the
(continued...)
Page: Previous 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 NextLast modified: May 25, 2011