- 97 -
Majority op. pp. 57-59; fn. ref. omitted.
The majority opinion’s rationale is factually, logically, and
legally flawed.8
The majority opinion’s rationale is factually flawed for
various reasons. One reason is that it concludes that decedent
could have caused WCB Holdings to redeem the WCB Holdings class B
membership units owned by BFLP. That conclusion is not supported
by, and is contrary to, the following findings of fact of the
majority opinion regarding the circumstances under which the
chief manager of WCB Holdings (chief manager), who was decedent’s
son Mark Bongard, was required to obtain the approval of a
majority of the WCB Holdings class A governance units before he
8The majority opinion’s reliance on Estate of Thompson v.
Commissioner, 382 F.3d 367 (3d Cir. 2004), affg. T.C. Memo. 2002-
246, is misplaced, as is its reliance on certain other cases,
principally Estate of Strangi v. Commissioner, T.C. Memo. 2003-
145, and Estate of Harper v. Commissioner, T.C. Memo. 2002-121,
in support of its holdings under sec. 2036(a)(1). Each of those
cases found the existence of an agreement under which the
decedent involved retained for life the possession or enjoyment
of, or the right to the income from, the property that such
decedent transferred within the meaning of sec. 2036(a)(1). Each
of those cases is materially distinguishable from, and is not
controlling in, the instant case. For example, unlike cases
cited by the majority opinion, decedent here did not transfer to
BFLP assets needed to maintain his lifestyle; in the instant
case, decedent had millions of dollars of assets that remained
outside of BFLP (and outside of WCB Holdings) and that were more
than adequate to maintain decedent’s lifestyle during his
lifetime. In addition, in the instant case, during decedent's
lifetime there were no distributions to or on behalf of decedent
from BFLP and no commingling of BFLP's assets with decedent's
assets, as was done in cases on which the majority opinion
relies.
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