- 83 - see how proportionality aids the inquiry as to whether the value of the property transferred exceeded the cash value of the consideration received in exchange. See id. Here, because of the presence of donative intent, the transfers cannot be considered in the ordinary course of business, as that term is used in section 25.2512-8, Gift Tax Regs., and proportionality is irrelevant. Finally, as I read the majority’s approach to the bona fide sale exception, the majority has added to the exception the requirement that the taxpayer show that the decedent’s transfer to the entity was motivated “by a legitimate and significant nontax purpose.” Majority op. p. 39.6 If, indeed, that is the majority’s approach, then even if an objective analysis indicates that the transferor received full consideration, the bona fide sale exception presumably would not be satisfied if a subjective analysis reveals that the transaction did not have a legitimate and significant nontax purpose. According to the majority, indicators of the lack of such purpose include (1) that the 5(...continued) arm’s length. Unless a gift motive is conceded or some secret knowledge is presumed, I am not persuaded that a rational person dealing at arm’s length would ever knowingly exchange assets worth $300 for an interest in an entity worth $200, with no right to control the entity or compel a distribution of her share of the entity’s assets. 6 As I see it, the addition of that separate test is not necessary here, since petitioner has not otherwise shown that the transfers satisfy the bona fide sale exception.Page: Previous 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Next
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