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CHIECHI, J., concurring in part1 and dissenting in part: The
majority opinion acknowledges that section 2036(a)(1) will not
apply unless: (1) Decedent made a transfer; (2) such transfer
was not a bona fide sale for an adequate and full consideration
in money or money's worth; and (3) under such transfer decedent
retained for his life the possession or enjoyment of, or the
right to the income from, the property transferred. The majority
opinion holds that decedent’s transfer to the Bongard Family
Limited Partnership (BFLP) of his WCB Holdings class B membership
units was a transfer which was not a bona fide sale for an
adequate and full consideration in money or money’s worth and
under which decedent retained for his life the enjoyment of such
units.2 Consequently, according to the majority opinion, section
1I concur in the holdings of the majority opinion that
decedent made a transfer to WCB Holdings of his Empak stock that
was a bona fide sale for an adequate and full consideration in
money or money’s worth within the meaning of sec. 2036(a) and
that consequently sec. 2036(a) does not apply with respect to
that transfer. I also concur in the holdings of the majority
opinion that, as a result of the foregoing holdings under sec.
2036(a), sec. 2035(a) does not apply with respect to decedent’s
respective gifts of certain class A membership units in WCB
Holdings to the Wayne C. Bongard Children’s Trust (Children’s
Trust), the Wayne C. Bongard Grandchildren’s Trust
(Grandchildren’s Trust), and the Cynthia F. Bongard Qualified
Terminal Interest Property Trust (QTIP Trust).
2The majority opinion does not hold that decedent retained
for his life the possession of, or the right to the income from,
the WCB Holdings class B membership units that he transferred to
BFLP. Thus, the focus herein is on whether decedent retained for
his life the enjoyment of such units within the meaning of sec.
2036(a)(1).
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