Estate of Wayne C. Bongard, Deceased, James A. Bernards, Personal Representative - Page 100

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          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.                             




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