Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 85

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          the Federal estate tax system by preventing a depletion of an               
          estate by testamentary-like inter vivos transfers for less than             
          an adequate and full consideration.  See United States v. Estate            
          of Grace, 395 U.S. 316 (1969).                                              
               Whether the value of consideration received in the form of             
          an interest in a partnership is “adequate and full” within the              
          meaning of section 2036(a) is a valuation issue.  For this                  
          purpose, I believe that the Court must determine the fair market            
          value of the partnership interest as of the date of the transfer,           
          applying the well-established valuation principles that take into           
          account discounts and/or premiums inhering in that fair market              
          value.1  The value of the transferred property that would have              
          been included in the transferor’s gross estate absent the                   
          transfer would have been determined under such a valuation                  
          approach.  I believe it only natural to conclude that the same              
          approach should apply to determine the value of the consideration           
          that would have replaced the transferred property in the                    
          transferor’s gross estate had the transferor died immediately               


               1 The Court need not determine this fair market value,                 
          however, if the record establishes that the partnership interest            
          was received in an ordinary commercial transaction.  In that                
          case, the values of the transferred and received properties would           
          be considered to be equal.  See sec. 25.2512-8, Gift Tax Regs.              
          (transfers “made in the ordinary course of business (a                      
          transaction which is bona fide, at arm’s length, and free from              
          any donative intent), will be considered as made for an adequate            
          and full consideration in money or money’s worth”); see also                
          Harper v. Commissioner, T.C. Memo. 2002-121.                                




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