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2036(a)(1) requires decedent’s gross estate to include the value
of such units owned on the date of decedent’s death by BFLP that
is proportionate to the 91.28-percent BFLP limited partnership
interest owned on that date by decedent.3 I dissent.4 The
majority opinion’s holding that decedent’s transfer to BFLP of
his WCB Holdings class B membership units is subject to section
2036(a)(1), which respondent does not even advocate,5 is rejected
by the statute and by United States v. Byrum, 408 U.S. 125
3Because the majority opinion holds that decedent’s transfer
to BFLP of his WCB Holdings class B membership units satisfies
sec. 2036(a)(1), the majority opinion indicates that it need not
address whether such transfer satisfies sec. 2036(a)(2), on which
respondent relies. See infra note 5.
4I also dissent from the majority opinion’s holding that
sec. 2035(a) requires decedent’s gross estate to include the
value as of the date of decedent’s death of the WCB Holdings
class B membership units owned on that date by BFLP that is
proportionate to the 7.72-percent BFLP limited partnership
interest owned on that date by his wife Cynthia Bongard, which
she received from decedent as a gift on Dec. 10, 1997, less than
a year before he died. That erroneous holding flows from the
majority opinion’s erroneous holding under sec. 2036(a)(1).
5Respondent relies only on sec. 2036(a)(2), and not on sec.
2036(a)(1), with respect to decedent’s transfer to BFLP of his
WCB Holdings class B membership units. Respondent argues with
respect to that transfer that, under the partnership agreement
governing BFLP, decedent had the right, in conjunction with the
Wayne C. Bongard Irrevocable Stock Accumulation Trust (ISA
Trust), the general partner of BFLP, to liquidate BFLP and to
amend that agreement. Consequently, according to respondent,
decedent retained the right under sec. 2036(a)(2), either alone
or in conjunction with any person, to designate the persons who
shall possess or enjoy the property that he transferred to BFLP
or the income therefrom, and sec. 2036(a)(2) requires decedent’s
gross estate to include the value of certain WCB Holdings class B
membership units owned by BFLP on the date of decedent’s death.
See supra note 3.
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