Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 81

                                        - 64 -                                        
               LARO, J., concurring in result:  I concur only because I am            
          uncomfortable with the analysis used by the majority in arriving            
          at its result.  That analysis applies a new test that the                   
          majority has created to decide whether a transfer to a family               
          limited partnership should be respected for Federal tax purposes.           
          The majority applies its test in lieu of deeply ingrained caselaw           
          that conditions satisfaction of the “bona fide sale for an                  
          adequate and full consideration in money or money’s worth”                  
          exception of section 2036(a) (adequate and full consideration               
          exception) on the transferor’s receipt of property equal in value           
          to that of the property transferred by the transferor.  In other            
          words, under that caselaw, the adequate and full consideration              
          exception may apply only where the transferor’s receipt of                  
          consideration is of a sufficient value to prevent the transfer              
          from depleting the transferor’s gross estate.                               
               The majority states its test as follows:  “In the context of           
          family limited partnerships, the bona fide sale for adequate and            
          full consideration exception is met where [1] the record                    
          establishes the existence of a legitimate and significant nontax            
          reason for creating the family limited partnership, and [2] the             
          transferors received partnership interests proportionate to the             
          value of the property transferred.”  Majority op. p. 39.  I                 
          disagree with both prongs of this test.  I believe that a                   
          transferor satisfies the adequate and full consideration                    






Page:  Previous  54  55  56  57  58  59  60  61  62  63  64  65  66  67  68  69  70  71  72  73  Next

Last modified: May 25, 2011