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on to explain that the Commissioner merely “seeks to apply the
exception precisely as written as his position should not be
applied in ordinary commercial circumstances even though the
decedent may be said to have enjoyed the property until his
death.” Id. at 387. The majority in this case does not address
the Thompson majority’s conclusion that valuation discounts may
be taken into account for purposes of the adequate and full
consideration exception. Nor does the majority in this case
attempt to answer the Thompson majority’s query as to why
applying valuation discounts for such a purpose reads the
adequate and full consideration exception out of section 2036(a).
I recognize that the Court of Appeals for the Fifth Circuit
in Kimbell v. United States, 371 F.3d 257, 266 (5th Cir. 2004),
stated that valuation principles should not be equated with the
test of “adequate and full consideration” because business or
other financial considerations may enter into a transferor’s
decision to receive an interest in a limited partnership that may
not be immediately sold for 100 cents on the dollar. While I do
not disagree that these considerations may cause a transferor to
accept such an interest in a partnership, the issue as I see it
is whether the inability to realize the 100 cents is attributable
to (1) an actual difference in value between the transferred and
received properties or (2) the presence of one or more intangible
assets the sales price of which is subject to dispute. Under the
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